EXECUTION COPY
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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer and as Loan Specific Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
ARCAP SERVICING, INC.,
as General Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Tax Administrator,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
----------
$2,079,030,155
Aggregate Initial Certificate Principal Balance
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Commercial Mortgage Pass-Through Certificates
Series 2006-PWR12
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TABLE OF CONTENTS
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SECTION PAGE
-------------- ----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms............................................. 6
SECTION 1.02. General Interpretive Principles........................... 73
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool...... 73
SECTION 1.04. Cross-Collateralized Mortgage Loans....................... 75
SECTION 1.05. Incorporation of Preliminary Statement.................... 76
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II
REGULAR INTERESTS, REMIC III COMPONENTS, REMIC I RESIDUAL INTEREST,
REMIC II RESIDUAL INTEREST, REMIC III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans....................... 77
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.................. 82
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage
Loans by the Pooled Mortgage Loan Sellers................. 84
SECTION 2.04. Representations and Warranties of the Depositor........... 89
SECTION 2.05. Representations and Warranties of PAR as a Master
Servicer.................................................. 90
SECTION 2.06. Representations and Warranties of WFB as a Master
Servicer.................................................. 91
SECTION 2.07. Representations and Warranties of the General Special
Servicer.................................................. 92
SECTION 2.08. Representations and Warranties of the Loan Specific
Special Servicers......................................... 94
SECTION 2.09. Representations and Warranties of the Certificate
Administrator............................................. 95
SECTION 2.10. Representations and Warranties of the Tax Administrator... 96
SECTION 2.11. Representations, Warranties and Covenants of the Trustee.. 97
SECTION 2.12. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain
Matters Involving REMIC I................................. 98
SECTION 2.13. Conveyance of the REMIC I Regular Interests; Acceptance of
the REMIC I Regular Interests by Trustee.................. 101
SECTION 2.14. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain
Matters Involving REMIC II................................ 101
SECTION 2.15. Conveyance of the REMIC II Regular Interests; Acceptance
of the REMIC II Regular Interests by Trustee.............. 102
SECTION 2.16. Creation of REMIC III; Issuance of the REMIC III
Certificates, the REMIC III Components and the REMIC III
Residual Interest; Certain Matters Involving REMIC III.... 102
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the Class V and
Class R Certificates...................................... 104
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions........................................ 106
SECTION 3.02. Collection of Mortgage Loan Payments...................... 110
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts...................... 112
SECTION 3.04. Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds Account,
Companion Note Custodial Accounts and Subordinate Note
Custodial Accounts........................................ 115
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the
Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account, the Companion Note
Custodial Accounts and the Subordinate Note Custodial
Accounts.................................................. 122
SECTION 3.06. Investment of Funds in the Accounts....................... 135
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..................................... 137
SECTION 3.08. Enforcement of Alienation Clauses......................... 141
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans........ 144
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files........... 147
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances...................... 149
SECTION 3.12. Property Inspections; Collection of Financial Statements.. 156
SECTION 3.13. [Reserved]................................................ 158
SECTION 3.14. [Reserved]................................................ 158
SECTION 3.15. Access to Information..................................... 158
SECTION 3.16. Title to Administered REO Property; REO Account........... 159
SECTION 3.17. Management of Administered REO Property................... 160
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties;
Sale of the Non-Trust- Serviced Pooled Mortgage Loan...... 163
SECTION 3.19. Additional Obligations of Master Servicers and Special
Servicer.................................................. 169
SECTION 3.20. Modifications, Waivers, Amendments and Consents........... 172
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer
and Applicable Special Servicer; Record Keeping........... 177
SECTION 3.22. Sub-Servicing Agreements and the Primary Servicing
Agreements................................................ 179
SECTION 3.23. Controlling Class Representative.......................... 183
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative............................................ 184
SECTION 3.25. Replacement of Special Servicers.......................... 188
SECTION 3.26. Application of Default Charges............................ 190
SECTION 3.27. Certain Rights and Powers of the 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder and the 0000 Xxxxxxxx Controlling
Party..................................................... 192
SECTION 3.28. Certain Rights and Powers of the Tuscany Plaza Non-Pooled
Subordinate Noteholder and the Tuscany Plaza Controlling
Party..................................................... 194
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions............................................. 197
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting..... 208
SECTION 4.03. P&I Advances.............................................. 217
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.................................................. 221
SECTION 4.05. Calculations.............................................. 222
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.......................................... 223
SECTION 5.02. Registration of Transfer and Exchange of Certificates..... 223
SECTION 5.03. Book-Entry Certificates................................... 229
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates......... 231
SECTION 5.05. Persons Deemed Owners..................................... 231
SECTION 5.06. Certification by Certificate Owners....................... 231
SECTION 5.07. Appointment of Authenticating Agents...................... 231
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND
THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers, the
Primary Servicers and the Special Servicers............... 233
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a
Master Servicer or the Special Servicer................... 233
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicers, the Primary Servicers and the Special
Servicers................................................. 233
SECTION 6.04. Resignation of the Master Servicers and the Special
Servicers................................................. 235
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicers and the Special Servicers................ 236
SECTION 6.06. Master Servicers, the Primary Servicers and Special
Servicers May Own Certificates............................ 236
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default......................................... 238
SECTION 7.02. Trustee to Act; Appointment of Successor.................. 242
SECTION 7.03. Notification to Certificateholders........................ 243
SECTION 7.04. Waiver of Events of Default............................... 244
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...... 244
ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE
ADMINISTRATOR AND THE TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator................... 245
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator................... 246
SECTION 8.03. The Trustee, the Certificate Administrator and the Tax
Administrator not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans............................ 248
SECTION 8.04. The Trustee, the Certificate Administrator and the Tax
Administrator May Own Certificates........................ 248
SECTION 8.05. Fees and Expenses of the Trustee, the Certificate
Administrator and the Tax Administrator; Indemnification
of and by the Trustee, the Certificate Administrator and
the Tax Administrator..................................... 248
SECTION 8.06. Eligibility Requirements for the Trustee, the Certificate
Administrator and the Tax Administrator................... 250
SECTION 8.07. Resignation and Removal of the Trustee, the Certificate
Administrator and the Tax Administrator................... 251
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax
Administrator............................................. 252
SECTION 8.09. Merger or Consolidation of the Trustee, the Certificate
Administrator or the Tax Administrator.................... 253
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee............. 253
SECTION 8.11. Appointment of Custodians................................. 254
SECTION 8.12. Access to Certain Information............................. 254
SECTION 8.13. Appointment of Fiscal Agent............................... 256
SECTION 8.14. Representations and Warranties of any Fiscal Agent........ 257
SECTION 8.15. Advance Security Arrangement.............................. 258
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled
Mortgage Loans............................................ 259
SECTION 9.02. Additional Termination Requirements....................... 261
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration........................................ 263
SECTION 10.02. The Depositor, the Master Servicers and the Special
Servicers to Cooperate with the Tax Administrator......... 265
ARTICLE XI
EXCHANGE ACT REPORTING
AND REGULATION AB COMPLIANCE
SECTION 11.01. Intent of the Parties; Reasonableness..................... 267
SECTION 11.02. [Reserved.]............................................... 267
SECTION 11.03. Information to be Provided by the Master Servicers, the
Special Servicers, the Primary Servicers and the
Certificate Administrator................................. 267
SECTION 11.04. [Reserved.]............................................... 269
SECTION 11.05. Filing Obligations........................................ 269
SECTION 11.06. Form 10-D Filings......................................... 269
SECTION 11.07. Form 10-K Filings......................................... 271
SECTION 11.08. Xxxxxxxx-Xxxxx Certification.............................. 272
SECTION 11.09. Form 8-K Filings.......................................... 273
SECTION 11.10. Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports........................ 275
SECTION 11.11. Annual Compliance Statements.............................. 275
SECTION 11.12. Annual Reports on Assessment of Compliance with Servicing
Criteria.................................................. 276
SECTION 11.13. Annual Independent Public Accountants' Servicing Report... 278
SECTION 11.14. Indemnification........................................... 278
SECTION 11.15. Amendments................................................ 280
SECTION 11.16. Exchange Act Report Signatures............................ 280
SECTION 11.17. Termination of the Trustee, the Certificate Administrator
and Sub-Servicers......................................... 280
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment................................................. 281
SECTION 12.02. Recordation of Agreement; Counterparts.................... 283
SECTION 12.03. Limitation on Rights of Certificateholders................ 283
SECTION 12.04. Governing Law............................................. 283
SECTION 12.05. Notices................................................... 284
SECTION 12.06. Severability of Provisions................................ 284
SECTION 12.07. Successors and Assigns; Beneficiaries..................... 285
SECTION 12.08. Article and Section Headings.............................. 285
SECTION 12.09. Notices to and from the Rating Agencies and the
Depositor................................................. 285
SECTION 12.10. Notices to Controlling Class Representative............... 286
SECTION 12.11. Complete Agreement........................................ 286
EXHIBITS
EXHIBIT A-1 Form of Certificate (other than Class R and Class V Certificates)
EXHIBIT A-2 Form of Class R Certificate
EXHIBIT A-3 Form of Class V Certificate
EXHIBIT B Letters of Representations Among Depositor, Trustee and Initial
Depositary
EXHIBIT C-1 Form of Master Servicer Request for Release
EXHIBIT C-2 Form of Special Servicer Request for Release
EXHIBIT D-1 Form of Certificate Administrator Report
EXHIBIT D-2 Minimum Information for Certificate Administrator Report
EXHIBIT E-1 Form of ARCap Interest on Advance Reconciliation Report
EXHIBIT E-2 Form of ARCap Mortgage Loans Delinquent Report
EXHIBIT X-0 Xxxx xx XXXxx X&X Advances as of Remittance Date Report
EXHIBIT E-4 Form of Realized Loss Report
EXHIBIT E-5 ARCap Naming Convention for Electronic File Delivery
EXHIBIT E-6 Controlling Class Certificateholder's Reports Checklist
EXHIBIT F-1 Form of Transferor Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT F-2C Form of Transferee Certificate for Certain Transfers of Interests
in Rule 144A Global Certificates
EXHIBIT F-2D Form of Transferee Certificate for Certain Transfers of Interests
in Regulation S Global Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade
Certificates Held in Physical Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R
Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R
Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of the
Special Servicer
EXHIBIT I-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Form of Power of Attorney by Trustee
EXHIBIT M-1 Form of Xxxxxxxx-Xxxxx Certification
EXHIBIT M-2 Form of Xxxxxxxx-Xxxxx Backup Certification
EXHIBIT N Form of Final Certification of Trustee
EXHIBIT O Form of Defeasance Certification
EXHIBIT P Form of Outside Master Servicer Notice
EXHIBIT Q Form of Additional Disclosure Notification
EXHIBIT R Copy of Nationwide Primary Servicer Undertaking to Indemnify
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SCHEDULES
SCHEDULE I-A Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C Schedule of WFB Pooled Mortgage Loans
SCHEDULE I-D Schedule of PCF Pooled Mortgage Loans
SCHEDULE I-E Schedule of PCFII Pooled Mortgage Loans
SCHEDULE I-F Schedule of Nationwide Pooled Mortgage Loans
SCHEDULE II Schedule of Exceptions to Mortgage File Delivery (under Section
2.02(a))
SCHEDULE III Schedule of Designated Sub-Servicers
SCHEDULE IV Reference Rates
SCHEDULE V Borrower Third-Party Beneficiaries (under Section 2.03)
SCHEDULE VI Class A-AB Planned Principal Balances
SCHEDULE VII Closing Date Deposit Mortgage Loans and Related Closing Date
Deposit Amounts
SCHEDULE VIII Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D Disclosure
SCHEDULE X Additional Form 10-K Disclosure
SCHEDULE XI Form 8-K Disclosure Information
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This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of June 1, 2006, among BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES
INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC., as a Master Servicer and a
Loan Specific Special Servicer, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a
Master Servicer, ARCAP SERVICING, INC., as General Special Servicer, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Certificate Administrator and as Tax
Administrator, and LASALLE BANK NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
REMIC I
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Pooled Mortgage Loans (exclusive of certain
amounts payable thereon) and certain other assets as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
I". The Class R Certificates will represent ownership of (among other things)
the sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions under federal income tax law. The Latest Possible Maturity Date for
each REMIC I Regular Interest is the Rated Final Distribution Date. None of the
REMIC I Regular Interests will be certificated.
REMIC II
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R Certificates will represent ownership of
(among other things) the sole class of "residual interests" in REMIC II for
purposes of the REMIC Provisions under federal income tax law. The following
table sets forth the designation, the REMIC II Remittance Rate and the initial
Uncertificated Principal Balance for each of the REMIC II Regular Interests. The
Latest Possible Maturity Date for each REMIC II Regular Interest is the Rated
Final Distribution Date. None of the REMIC II Regular Interests will be
certificated.
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- ----------------------
A-1 Variable (1) $ 68,100,000
A-2 Variable (1) $ 49,000,000
A-3 Variable (1) $150,500,000
A-AB Variable (1) $119,800,000
A-4 Variable (1) $873,250,000
A-1A Variable (1) $194,671,000
A-M Variable (1) $207,903,000
A-J Variable (1) $161,124,000
B Variable (1) $ 44,180,000
C Variable (1) $ 18,191,000
D Variable (1) $ 33,785,000
E Variable (1) $ 20,790,000
F Variable (1) $ 25,988,000
G Variable (1) $ 20,790,000
H Variable (1) $ 25,988,000
J Variable (1) $ 7,796,000
K Variable (1) $ 7,797,000
L Variable (1) $ 7,796,000
M Variable (1) $ 5,198,000
N Variable (1) $ 5,197,000
O Variable (1) $ 5,198,000
P Variable (1) $ 25,988,155
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(1) The REMIC II Remittance Rate for each REMIC II Regular Interest shall be a
variable rate per annum calculated in accordance with the definition of
"REMIC II Remittance Rate".
REMIC III
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R Certificates will evidence ownership of
(among other things) the sole class of "residual interests" in REMIC III for
purposes of the REMIC Provisions under federal income tax law.
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Class Designations of the REMIC III Certificates
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and initial Class Principal Balance for each Class of the
REMIC III Certificates.
Class Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 ____% per annum $ 68,100,000
Class A-2 Variable (1) $ 49,000,000
Class A-3 Variable (1) $150,500,000
Class A-AB Variable (1) $119,800,000
Class A-4 Variable (1) $873,250,000
A-1A Variable (1) $194,671,000
Class A-M Variable (1) $207,903,000
Class A-J Variable (1) $161,124,000
Class B Variable (1) $ 44,180,000
Class C Variable (1) $ 18,191,000
Class D Variable (1) $ 33,785,000
Class E Variable (1) $ 20,790,000
Class F Variable (1) $ 25,988,000
Class G Variable (1) $ 20,790,000
Class H Variable (1) $ 25,988,000
Class J Variable (2) $ 7,796,000
Class K Variable (2) $ 7,797,000
Class L Variable (2) $ 7,796,000
Class M Variable (2) $ 5,198,000
Class N Variable (2) $ 5,197,000
Class O Variable (2) $ 5,198,000
Class P Variable (2) $ 25,988,155
Class X Variable (1) (3)
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(1) The respective Pass-Through Rates for the Class X, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificates will, in the case of
each of those Classes, be a variable rate per annum calculated in
accordance with the definition of "Pass-Through Rate".
(2) The respective Pass-Through Rates for the Class A-1, Class A-2, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates will,
in the case of each of those Classes, be a rate per annum equal to the
lesser of a fixed rate per annum (equal to 5.546%, 5.688%, 5.470%, 5.470%,
5.470%, 5.470%, 5.470%, 5.470% and 5.470%, respectively) and a variable
rate, all as calculated in accordance with the definition of "Pass-Through
Rate".
(3) The Class X Certificates will not have a Class Principal Balance and will
not entitle their Holders to receive distributions of principal. The Class
X Certificates will have a Class Notional Amount which will be equal to the
aggregate of the Component Notional Amounts of each Class of REMIC III
Components from time to time. As more specifically provided herein,
interest in respect of such Class of Certificates will consist of the
aggregate amount of interest accrued on the respective Component Notional
Amounts of such Class' REMIC III Components from time to time.
Designations of the REMIC III Components
The REMIC III Components of the Class X Certificates are hereby
irrevocably assigned the alphanumeric designation set forth in the following
table under the caption "REMIC III Component of Class X Certificates".
-3-
Corresponding REMIC II Regular Interests
The following table irrevocably sets forth, with respect to each REMIC
II Regular Interest, the Class of Certificates, REMIC III Component of the Class
X Certificates for which such REMIC II Regular Interest constitutes a
Corresponding REMIC II Regular Interest:
REMIC III
REMIC II Class of Component of Class X
Regular Interest Certificates Certificates
---------------- ------------ --------------------
X-0 X-0 X-X-0
X-0 X-0 X-X-0
X-0 X-0 X-X-0
X-XX A-AB X-A-AB
X-0 X-0 X-X-0
A-1A A-1A X-A-1A
A-M A-M A-A-M
A-J A-J A-A-J
B B X-B
C C X-C
D D X-D
E E X-E
F F X-F
G G X-G
H H X-H
J J X-J
K K X-K
L L X-L
M M X-M
N N X-N
O O X-O
P P X-P
For federal income tax purposes, each Class of the REMIC III
Certificates will be designated as a separate "regular interest" in REMIC III.
The Latest Possible Maturity Date for each Class of REMIC III Certificates is
the Rated Final Distribution Date.
The Initial Pool Balance will be $2,079,030,155, and the initial
aggregate Uncertificated Principal Balance of the REMIC I Regular Interests, the
initial aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests and the initial aggregate Class Principal Balance of the respective
Classes of REMIC III Certificates (other than the Class X Certificates) will, in
each case, be $2,079,030,155.
As described below, there exist one or more Pooled Mortgage Loans that
are part of split loan structures comprising such Pooled Mortgage Loan and one
or more other loans that, together with the respective Pooled Mortgage Loan, are
secured by the same Mortgage encumbering the related Mortgaged Properties, which
other loans are, in each case, pari passu in right of payment to the related
Pooled Mortgage Loan or subordinate in right of payment to the related Pooled
Mortgage Loan.
The 0000 Xxxxxxxx Pooled Mortgage Loan is part of a split loan
structure comprising the 0000 Xxxxxxxx Pooled Mortgage Loan and the 0000
Xxxxxxxx Non-Pooled Subordinate Loan. The relative rights of the holder of the
0000 Xxxxxxxx Pooled Mortgage Loan and the holder of the 0000 Xxxxxxxx
Non-Pooled Subordinate Loan are set forth in the 0000 Xxxxxxxx Intercreditor
Agreement, which provides that the 0000 Xxxxxxxx Loan Group is to be
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serviced and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the 0000 Xxxxxxxx
Special Servicer.
The Tuscany Plaza Pooled Mortgage Loan is part of a split loan
structure comprising the Tuscany Plaza Pooled Mortgage Loan and the Tuscany
Plaza Non-Pooled Subordinate Loan. The relative rights of the holder of the
Tuscany Plaza Pooled Mortgage Loan and the holder of the Tuscany Plaza
Non-Pooled Subordinate Loan are set forth in the Tuscany Plaza Intercreditor
Agreement, which provides that the Tuscany Plaza Loan Group is to be serviced
and administered in accordance with this Agreement, by the Trustee, the
Certificate Administrator, the applicable Master Servicer and the Tuscany Plaza
Special Servicer.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, each Special Servicer, the Certificate
Administrator, the Tax Administrator and the Trustee hereby agree, in each case,
as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"1675 Broadway Change of Control Event": The event that occurs by
operation of Section 18(a) of the 0000 Xxxxxxxx Intercreditor Agreement if, as
of any date of determination, either the 0000 Xxxxxxxx Non-Pooled Subordinate
Noteholder is the Borrower under the 0000 Xxxxxxxx Loan Group or an Affiliate
thereof or (a)(1) the then outstanding principal balance of the 0000 Xxxxxxxx
Non-Pooled Subordinate Loan minus (2) the sum of (x) any Appraisal Reduction
Amounts allocable to the 0000 Xxxxxxxx Non-Pooled Subordinate Loan, (y) any
realized losses allocable to the 0000 Xxxxxxxx Non-Pooled Subordinate Loan, and
(z) any Additional Trust Fund Expenses attributable to the 0000 Xxxxxxxx
Non-Pooled Subordinate Loan, is less than (b) 25% of the difference between (1)
the initial principal balance of the 0000 Xxxxxxxx Non-Pooled Subordinate Loan
minus (2) any payments of principal (whether as scheduled amortization,
prepayments or otherwise) allocated to, and received on, the 0000 Xxxxxxxx
Non-Pooled Subordinate Loan.
"1675 Broadway Controlling Party": The 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder at any time when a 0000 Xxxxxxxx Change of Control Event
does not exist or the Controlling Class Representative at any time when a 0000
Xxxxxxxx Change of Control Event exists.
"1675 Broadway Intercreditor Agreement": That certain Co-Lender
Agreement, dated as of June 21, 2006, by and between PMCF as initial note A
holder and The Prudential Insurance Company of America, as initial note B
holder.
"1675 Broadway Loan Group": Collectively, the 0000 Xxxxxxxx Pooled
Mortgage Loan and the 0000 Xxxxxxxx Non-Pooled Subordinate Loan (including any
successor REO Mortgage Loans with respect to such loans).
"1675 Broadway Mortgaged Property": The Mortgaged Property identified
on the Pooled Mortgage Loan Schedule as "1675 Broadway".
"1675 Broadway Non-Pooled Subordinate Loan": The mortgage loan, with
an original principal balance in the amount of $25,000,000 that is secured by
the same Mortgage encumbering the 0000 Xxxxxxxx Mortgaged Property as the 0000
Xxxxxxxx Pooled Mortgage Loan and is subordinate in right of payment to the 0000
Xxxxxxxx Pooled Mortgage Loan and is held as of the Closing Date by The
Prudential Insurance Company of America. The 0000 Xxxxxxxx Non-Pooled
Subordinate Loan is not a "Pooled Mortgage Loan" or part of the Trust Fund, any
REMIC Pool or any Grantor Trust Pool.
"1675 Broadway Non-Pooled Subordinate Noteholder": The holder or
holders of the related Mortgage Note evidencing the 0000 Xxxxxxxx Non-Pooled
Subordinate Loan.
"1675 Broadway Pooled Mortgage Loan": The Pooled Mortgage Loan in the
original principal amount of $155,000,000 that is secured by the Mortgage
encumbering the 0000 Xxxxxxxx Mortgaged Property.
"1675 Broadway Special Servicer": PAR, in its capacity as special
servicer with respect to the 0000 Xxxxxxxx Loan Group, or any successor special
servicer of the 0000 Xxxxxxxx Loan Group appointed as provided herein.
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"1675 Broadway Sub-Servicer": Any Sub-Servicer of the 0000 Xxxxxxxx
Loan Group appointed by the applicable Master Servicer in accordance with the
terms hereof.
"1675 Broadway Sub-Servicing Agreement": The Sub-Servicing Agreement
between the 0000 Xxxxxxxx Sub-Servicer, if any, and the applicable Master
Servicer.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"Accrued Certificate Interest": The interest accrued from time to time
with respect to any Class of REMIC III Certificates, the amount of which
interest shall equal: (a) in the case of any Class of Principal Balance
Certificates for any Interest Accrual Period, one-twelfth of the product of (i)
the Pass-Through Rate applicable to such Class of REMIC III Certificates for
such Interest Accrual Period, multiplied by (ii) the Class Principal Balance of
such Class of REMIC III Certificates outstanding immediately prior to the
related Distribution Date; and (b) in the case of any Interest Only Certificates
for any Interest Accrual Period, the aggregate amount of Accrued Component
Interest for all of such Class' REMIC III Components for such Interest Accrual
Period.
"Accrued Component Interest": The interest accrued from time to time
with respect to any REMIC III Component of the Class X Certificates, the amount
of which interest shall equal, for any Interest Accrual Period, one-twelfth of
the product of (i) the Class X Strip Rate applicable to such REMIC III Component
for such Interest Accrual Period, multiplied by (ii) the Component Notional
Amount of such REMIC III Component outstanding immediately prior to the related
Distribution Date.
"Actual/360 Basis": The accrual of interest calculated on the basis of
the actual number of days elapsed during any calendar month (or other applicable
recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on
an Actual/360 Basis.
"Additional Collateral": Any non-real property collateral (including
any Letter of Credit and Reserve Funds) pledged and/or delivered by or on behalf
of the related Borrower and held by the related Mortgagee to secure payment on
any Mortgage Loan.
"Additional Form 10-D Disclosure": As defined in Section 11.06.
"Additional Form 10-K Disclosure": As defined in Section 11.07.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Servicer": Each Affiliate of either Master Servicer,
either Primary Servicer, any Pooled Mortgage Loan Seller, the Depositor or any
of the Underwriters that Services any of the Pooled Mortgage Loans and each
Person, other than the Special Servicer, who is not an Affiliate of either
Master Servicer, either Primary Servicer, any Pooled Mortgage Loan Seller, the
Depositor or any of the Underwriters and who Services 10% or more of the Pooled
Mortgage Loans (based on their Stated Principal Balance). For clarification
purposes, the Certificate Administrator is an Additional Servicer and the
Trustee is not an Additional Servicer. For further clarification purposes, the
Special Servicer is not an Additional Servicer, it being acknowledged that the
Special Servicer constitutes a Reporting Servicer regardless of the number or
percentage of Pooled Mortgage Loans serviced on any particular date.
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
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"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Certificates (other than the Class R and Class V Certificates) receiving less
than the full amount of principal and/or Distributable Certificate Interest to
which they are entitled on any Distribution Date.
"Additional Yield Amount": As defined in Section 4.01(c).
"Administered REO Property": Any REO Property other than any REO
Property related to a Non-Trust-Serviced Pooled Mortgage Loan.
"Administrative Fee Rate": With respect to each Pooled Mortgage Loan
(or any successor REO Pooled Mortgage Loan with respect thereto), a rate per
annum equal to the sum of (i) the Servicer Report Administrator Fee Rate; (ii)
the Trustee Fee Rate, (iii) the Certificate Administrator Fee Rate, (iv) the
related Master Servicing Fee Rate and (v) if (and only if) such Pooled Mortgage
Loan constitutes a Non-Trust-Serviced Pooled Mortgage Loan, the rate per annum
equal to the rate per annum at which comparable administrative fees payable
under the applicable Non-Trust Servicing Agreement accrue.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": The interest accrued on any Advance (other than
any Unliquidated Advance) at the Reimbursement Rate, which is payable to the
party hereto that made that Advance, all in accordance with Section 3.11(g) or
Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of any Grantor Trust Pool as a Grantor Trust; or (ii) the imposition of a
tax upon any Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto) and, solely
with respect to matters affecting any Mortgage Loan Group that includes one or
more Serviced Non-Pooled Pari Passu Companion Loans, with respect to such
Mortgage Loan Group and any related class of Non-Pooled Pari Passu Companion
Loan Securities and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such class of Non-Pooled Pari Passu Companion Loan
Securities by such Rating Agency (or, in each case, the placing of such class on
"negative credit watch" status in contemplation of any such action with respect
thereto).
"Adverse REMIC Event": Either: (i) any impairment of the status of any
REMIC Pool as a REMIC; or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code, the tax on contributions under Section 860G(d) of the Code and the
tax on income from foreclosure property under Section 860G(c) of the Code).
"Affected Loan(s)": As defined in Section 2.03(b).
"Affiliate": 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.
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"Agreement": This Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing Date.
"Anticipated Repayment Date": With respect to any ARD Mortgage Loan,
the date specified in the related Mortgage Note, as of which Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is prior to the
Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (1) the laws of the State of New York; (2) to the extent
brought to the attention of the Tax Administrator (by either (i) an Opinion of
Counsel delivered to it or (ii) written notice from the appropriate taxing
authority as to the applicability of such state law), (a) the laws of the states
in which the Corporate Trust Offices of the Certificate Administrator and the
Trustee and the Primary Servicing Offices of the Master Servicers and the
Special Servicers are located and (b) the laws of the states in which any
Mortgage Loan Documents are held and/or any REO Properties are located; and (3)
such other state or local law as to which the Tax Administrator has actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property as
to which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of a
Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, at the
applicable Special Servicer's option, either a limited appraisal and a summary
report or an internal valuation prepared by such Special Servicer) that (i)
indicates the "market value" of the subject property (within the meaning of 12
CFR Section 225.62(g)) and (ii) is conducted by a Qualified Appraiser (except
that, in the case of a Pooled Mortgage Loan or an REO Pooled Mortgage Loan with
a Stated Principal Balance as of the date of such appraisal of $2,000,000 or
less, the appraiser may be an employee of the applicable Special Servicer, which
employee need not be a Qualified Appraiser but shall have experience in
commercial and/or multifamily properties, as the case may be, and possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount": With respect to any Serviced Mortgage
Loan that is a Required Appraisal Loan, an amount (calculated initially as of
the Determination Date immediately following the later of the date on which the
subject Pooled Mortgage Loan became a Required Appraisal Loan and the date on
which the applicable Appraisal was obtained) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal
Balance of such Required Appraisal Loan, (ii) to the extent not previously
advanced by or on behalf of the applicable Master Servicer or the Trustee,
all unpaid interest on such Required Appraisal Loan through the most recent
Due Date prior to the date of calculation (exclusive of any portion thereof
that represents Post-ARD Additional Interest and/or Default Interest),
(iii) all accrued and unpaid Special Servicing Fees in respect of such
Required Appraisal Loan, (iv) all related unreimbursed Advances (together
with Unliquidated Advances) made by or on behalf of (plus all accrued and
unpaid interest on such Advances (other than Unliquidated Advances))
payable to) the applicable Master Servicer, the applicable Special Servicer
and/or the Trustee with respect to such Required Appraisal Loan, (v) any
other outstanding Additional Trust Fund Expenses with respect to such
Required Appraisal Loan, and (vi) all currently due and unpaid real estate
taxes and assessments, insurance premiums and, if applicable, ground rents,
and any unfunded improvement or other applicable reserves, in respect of
the related Mortgaged Property or REO Property, as the case may be (in each
case, net of any amounts escrowed with the applicable Master Servicer or
the Special Servicer for such items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i)
90% of the Appraised Value of the related Mortgaged Property (or REO
Property) as determined by the most recent Appraisal or any letter update
of such Appraisal, over (ii) the amount of any obligations secured by liens
on such Mortgaged Property (or REO Property) that are prior to the lien of
the related Required Appraisal Loan; plus (b) the amount of any Escrow
Payments and/or Reserve Funds held by the applicable Master Servicer or the
applicable Special Servicer with respect to such Required Appraisal Loan,
the related Mortgaged Property or any related REO Property that (i) are not
being held in respect of any real estate taxes and assessments, insurance
premiums or, if applicable,
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ground rents, (ii) are not otherwise scheduled to be applied or utilized
(except to pay debt service on such Required Appraisal Loan) within the
twelve-month period following the date of determination and (iii) may be
applied towards the reduction of the principal balance of such Required
Appraisal Loan; plus (c) the amount of any Letter of Credit constituting
additional security for such Required Appraisal Loan and that may be
applied towards the reduction of the principal balance of such Required
Appraisal Loan.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a
Required Appraisal Loan, (ii) either (A) no Appraisal or update thereof has been
obtained or conducted, as applicable, in accordance with Section 3.19(a), with
respect to the related Mortgaged Property or REO Property, as the case may be,
during the 12-month period prior to the date such Mortgage Loan became a
Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Appraisal or update thereof a material change in the circumstances
surrounding the related Mortgaged Property or REO Property, as the case may be,
that would, in the applicable Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property or REO Property, as the case
may be, and (iii) no new Appraisal is obtained or conducted, as applicable, in
accordance with Section 3.19(a), within 60 days after such Mortgage Loan became
a Required Appraisal Loan, then (x) until such new Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.19(a), the Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of such
Required Appraisal Loan, and (y) upon receipt or performance, as applicable, in
accordance with Section 3.19(a), of such Appraisal or update thereof by the
applicable Special Servicer, the Appraisal Reduction Amount for such Required
Appraisal Loan shall be recalculated in accordance with the preceding sentence
of this definition.
In connection with the foregoing, each Cross-Collateralized Mortgage
Loan that is part of a single Cross-Collateralized Group shall be treated
separately (in each case as a single Mortgage Loan without regard to the
cross-collateralization and cross-default provisions) for purposes of
calculating an Appraisal Reduction Amount.
Notwithstanding the foregoing, as of any date of determination, all of
the following provisions shall apply in connection with each Serviced Mortgage
Loan Group: (i) if such Mortgage Loan Group then includes one or more Serviced
Non-Pooled Subordinate Loans, then, for purposes of the definition of "1675
Broadway Change of Control Event" or "Tuscany Plaza Change of Control Event", as
applicable, an Appraisal Reduction Amount shall be calculated with respect to
the entirety of the applicable Mortgage Loan Group as if it were a single
"Serviced Pooled Mortgage Loan" and allocated first to the related Non-Pooled
Subordinate Loan up to the full principal balance thereof; (ii) if such Mortgage
Loan Group then includes one or more Serviced Non-Pooled Pari Passu Companion
Loans (whether or not such Mortgage Loan Group also then includes one or more
Non-Pooled Subordinate Loans), then, for purposes of the proviso to Section
4.03(b) and any other applicable purpose relating to the Pooled Mortgage Loans
and the Non-Pooled Pari Passu Companion Loans, an Appraisal Reduction Amount
shall be calculated with respect to the entire indebtedness evidenced by the
Pooled Mortgage Loan included in such Mortgage Loan Group and such Non-Pooled
Pari Passu Companion Loans (but not any related Serviced Non-Pooled Subordinate
Loan included in such Mortgage Loan Group) as if they were a single "Serviced
Pooled Mortgage Loan" and allocated to such Pooled Mortgage Loan and Non-Pooled
Pari Passu Companion Loans up to the aggregate of, and on a pro rata basis in
accordance with, the respective outstanding principal balances of such Mortgage
Loans; and (iii) for all purposes (if any) other than as set forth in the
immediately preceding clauses (i) and (ii), an Appraisal Reduction Amount shall
be calculated solely with respect to the Pooled Mortgage Loan included in such
Mortgage Loan Group.
An Appraisal Reduction Amount with respect to any Pooled Mortgage Loan
will be reduced to zero as of the date on which all Servicing Transfer Events
have ceased to exist with respect to such Mortgage Loan and at least 90 days
have passed following the occurrence of the most recent Appraisal Trigger Event.
No Appraisal Reduction Amount will exist as to any Pooled Mortgage Loan after it
has been paid in full or it (or the REO Property) has been liquidated or
otherwise disposed of.
Notwithstanding the foregoing, with respect to each Non-Trust-Serviced
Pooled Mortgage Loan, the Appraisal Reduction Amount shall be the "appraisal
reduction amount" calculated by the applicable Non-Trust Master Servicer
pursuant to the applicable Non-Trust Servicing Agreement and the parties hereto
shall be entitled to rely on such calculations as reported to them by the
applicable Non-Trust Master Servicer.
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"Appraisal Trigger Event": As defined in Section 3.19(a).
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof based upon the most recent Appraisal
obtained or conducted, as appropriate, pursuant to this Agreement.
"ARCap Interest on Advance Reconciliation Report": The report in the
form of and containing the information provided for on Exhibit E-1 hereto. The
ARCap Interest on Advance Reconciliation Report shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"ARCap Mortgage Loans Delinquent Report": The report in the form of
and containing the information provided for on Exhibit E-2 hereto. The ARCap
Mortgage Loans Delinquent Report shall be in Excel format or such other format
as is reasonably acceptable to the Master Servicers, the Certificate
Administrator and the Controlling Class Representative.
"ARCap Naming Convention for Electronic File Delivery": The naming
convention for electronic file delivery set forth on Exhibit X-0 xxxxxx.
"XXXxx X&X Advances as of Remittance Date Report": The report in the
form of and containing the information provided for on Exhibit E-3 hereto. The
ARCap P&I Advances as of Remittance Date Report shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"ARD Mortgage Loan": A Mortgage Loan that provides for the accrual of
Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in full
on or prior to its Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan(s), as such assignment may be amended, modified, renewed
or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to (a) any Pooled Mortgage
Loan that is a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment beyond the Determination Date immediately following its scheduled
maturity date (as such date may be extended in connection with a bankruptcy,
insolvency or similar proceeding involving the related Borrower or by reason of
a modification, waiver or amendment granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer), for that scheduled maturity
date and for each subsequent Due Date as of which such Pooled Mortgage Loan
remains outstanding and part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due with respect to such Pooled Mortgage
Loan on such Due Date equal to the amount (exclusive of Default Interest) that
would have been due in respect thereof on such Due Date if such Pooled Mortgage
Loan had been required to continue to accrue interest in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any), in effect immediately prior to, and without regard to the occurrence of,
such maturity date; and (b) any REO Pooled Mortgage Loan, for any Due Date as of
which the related REO Property (or, in the case of any REO Pooled Mortgage Loan
that is a successor to any Pooled Mortgage Loan in a Mortgage Loan Group, any
interest in the related REO Property) remains part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment (or, in the case
of a Balloon Mortgage Loan described in clause (b) of this definition, the
Assumed Monthly Payment) that was due (or deemed due) with respect to the
related Pooled Mortgage Loan on the last Due Date prior to its becoming an REO
Pooled Mortgage Loan.
"ASTM": The American Society for Testing and Materials.
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"Authenticating Agent": Any authenticating agent appointed pursuant to
Section 5.07 (or, in the absence of any such appointment, the Certificate
Administrator).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) all amounts on deposit in the
Distribution Account as of 11:00 a.m., New York City time, on such Distribution
Date, (ii) to the extent not included in the amount described in clause (a)(i)
of this definition, any P&I Advances and/or Compensating Interest Payments that
were made hereunder in respect of such Distribution Date, (iii) to the extent
not included in the amount described in clause (a)(i) of this definition, the
aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess
Liquidation Proceeds Account to the Distribution Account in respect of such
Distribution Date, and (iv) to the extent not included in the amount described
in clause (a)(i) of this definition, if such Distribution Date occurs during the
month of March of 2007 or any year thereafter (or if the Final Distribution Date
occurs during the month of January (except in a leap year) or February of any
year, during such January or February), the aggregate of the Interest Reserve
Amounts with respect to the Interest Reserve Loans transferred from the Interest
Reserve Account to the Distribution Account during such month of March (or if
the Final Distribution Date occurs during the month of January (except in a leap
year) or February of any year, during such January or February) for distribution
on such Distribution Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period (other than, in the case of any Pooled Mortgage Loan
for which the Due Date is on a day other than the first day of each month and
such day in the current month happens to be later than the end of such related
Collection Period, in which case such collected Monthly Payment shall not be
withheld until the following month as otherwise contemplated by this clause
(i)), (ii) any payments of principal (including Principal Prepayments) and
interest, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
Received by the Trust after the end of the related Collection Period, (iii) any
Prepayment Premiums, Yield Maintenance Charges and/or Post-ARD Additional
Interest, (iv) any amounts payable or reimbursable to any Person from the
Distribution Account pursuant to clauses (iii) through (viii) of Section
3.05(b), (v) if such Distribution Date occurs during the month of February of
2007 or any year thereafter or during the month of January of 2007 or any year
thereafter that is not a leap year, the aggregate of the Interest Reserve
Amounts with respect to the Interest Reserve Loans to be withdrawn (pursuant to
Section 3.04(c) and Section 3.05(b)(ii)) from the Distribution Account and
deposited into the Interest Reserve Account during such month of February or
such month of January, as the case may be, and held for future distribution, and
(vi) any amounts deposited in the Distribution Account in error; provided that
the Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(v) of this
definition.
For purposes of determining the portion of the Available Distribution
Amount that is attributable to Loan Group 1 or Loan Group 2 in connection with
any Distribution Date, if the portion of the Principal Distribution Amount
otherwise attributable to such Loan Group is increased (or decreased) on account
of one or more Pooled Mortgage Loans that are not included in such Loan Group
pursuant to the definition of "Principal Distribution Amount", then the portion
of the Available Distribution Amount that is otherwise attributable to such Loan
Group in connection with such Distribution Date shall be likewise increased (or
decreased) by the same amount and the portion of the Available Distribution
Amount that is otherwise attributable to the Loan Group that includes such
Pooled Mortgage Loan shall be decreased (or increased) by the same amount.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date (or, in the
case of a Replacement Pooled Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, the Monthly
Payment due on its Stated Maturity Date is at least 5% of the original principal
balance of such Mortgage Loan.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Stated Maturity Date
of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
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"Base Prospectus": That certain prospectus dated March 31, 2006
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depositary or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Borrower": The obligor or obligors on a Mortgage Note.
"Breach": As defined in Section 2.03(a).
"BSCMI": Bear Xxxxxxx Commercial Mortgage, Inc., or its successor in
interest.
"BSCMI Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an Original BSCMI Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan
that was delivered under the BSCMI Pooled Mortgage Loan Purchase Agreement in
substitution for an Original BSCMI Pooled Mortgage Loan.
"BSCMI Pooled Mortgage Loan Purchase Agreement": That certain Mortgage
Loan Purchase and Sale Agreement dated as of June 8, 2006, between BSCMI as
seller and the Depositor as purchaser.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Illinois or any of the
jurisdictions in which the respective Primary Servicing Offices of the Master
Servicers, the Primary Servicers and the Special Servicers and the Corporate
Trust Offices of the Certificate Administrator and the Trustee are located, are
authorized or obligated by law or executive order to remain closed.
"Category 1 Request": In connection with the PCF Pooled Mortgage Loans
and PCFII Pooled Mortgage Loans, a "Category 1 Request" and a "Deemed Category 1
Request" as such terms are defined in the PGI Primary Servicing Agreement.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's 2006-PWR12 Commercial
Mortgage Pass-Through Certificates, as executed by the Certificate Administrator
and authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Administrator": WFB, in its capacity as certificate
administrator hereunder, or any successor certificate administrator appointed as
herein provided.
"Certificate Administrator Fee": With respect to each Pooled Mortgage
Loan and REO Pooled Mortgage Loan, the fee designated as such and payable to the
Certificate Administrator pursuant to Section 8.05(a). The Certificate
Administrator Fee includes the Tax Administrator Fee.
"Certificate Administrator Fee Rate": Sixty-one hundred-thousandths of
one percent (0.00061%) per annum.
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Interest Only
Certificates or Principal Balance Certificates, as of any date of determination,
a fraction, expressed as a decimal carried to eight places, the numerator of
which is the related Class Principal Balance or Class Notional Amount, as the
case may be, then outstanding, and the
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denominator of which is the related Class Principal Balance or Class Notional
Amount, as the case may be, outstanding as of the Closing Date.
"Certificate Group 1 Principal Distribution Amount": As defined in
Section 4.01(a).
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Tax Person shall
be a "Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of any
of the Depositor, a Master Servicer, a Special Servicer, the Tax Administrator,
the Certificate Administrator or the Trustee in its respective capacity as such
(other than any consent, approval or waiver contemplated by Sections 3.24 and/or
3.27), any Certificate registered in the name of such party or in the name of
any Affiliate thereof shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver that specifically relates to such party has been
obtained. The Certificate Registrar shall be entitled to request and
conclusively rely upon a certificate of the Depositor, a Master Servicer or the
Special Servicer in determining whether a Certificate is registered in the name
of an Affiliate of such Person. All references herein to "Certificateholders" or
"Holders" shall reflect the rights of Certificate Owners only insofar as they
may indirectly exercise such rights through the Depository and the Depository
Participants (except as otherwise specified herein), it being herein
acknowledged and agreed that the parties hereto shall be required to recognize
as a "Certificateholder" or "Holder" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificate Notional Amount": With respect to any Interest Only
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class of Interest Only Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Principal Balance Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certification Indemnitee": As defined in Section 11.14.
"Certification Parties": As defined in Section 11.08.
"Certifying Person": As defined in Section 11.08.
"Certifying Servicer": As defined in Section 11.11.
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric class designation and having the same payment terms.
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of business on which (i) two or more
Classes of the Class A Senior REMIC III Certificates remain outstanding and (ii)
the
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aggregate of the Class Principal Balances of 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 have previously been reduced
to zero as a result of the allocation of Realized Losses and Additional Trust
Fund Expenses pursuant to Section 4.04(a).
"Class A Senior REMIC III Certificates": The Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-AB Certificate": Any one of the Certificates with a "Class
A-AB" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-AB Planned Principal Balance" For any Distribution Date, the
principal balance set forth opposite such Distribution Date on Schedule VI
attached hereto.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional amount
on which any Class of Interest Only Certificates accrues or is deemed to accrue
interest from time to time, as calculated in accordance with Section 2.16(e).
"Class O Certificate": Any of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class P Certificate": Any of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class Principal Balance": The aggregate principal balance of any
Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall equal the initial Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be (i) reduced by the amount of
any distributions of principal made thereon on such Distribution Date pursuant
to Section 4.01, and (ii) further reduced by the amount of any Realized Losses
and Additional Trust Fund Expenses deemed allocated thereto on such Distribution
Date pursuant to Section 4.04(a); provided, however, that if the Principal
Distribution Amount for such Distribution Date includes any amount described in
clause (I)(C) of the definition of "Principal Distribution Amount" (in respect
of recoveries during the Collection Period related to such Distribution Date of
amounts determined to constitute Nonrecoverable Advances during a Collection
Period related to a prior Distribution Date), then the Class Principal Balances
of the respective Classes of Principal Balance Certificates shall hereby be
increased (in the aggregate) immediately prior to such Distribution Date by the
lesser of the amount of Realized Losses previously allocated thereto and such
amount described in such clause (I)(C) (and, as among the respective Classes of
Principal Balance Certificates, such increase shall be allocated, first, to the
Class A Senior Certificates, pro rata according to the amounts of Realized
Losses previously allocated to the respective Classes of Class A Senior REMIC
III Certificates, second, to the Class A-M Certificates, third to the Class A-J
Certificates and, then to the other Classes of Principal Balance Certificates in
sequential order according to alphabetical Class designation, in each case to
the extent of the lesser of the Realized Losses previously allocated thereto and
the remaining unallocated portion of the increase).
"Class R Certificate": Any of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing ownership of Grantor Trust R.
"Class V Certificate": Any of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing ownership of Grantor Trust V.
"Class X Certificate": Any of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X Strip Rate": As defined in Section 2.16(f).
"Clearstream": Clearstream Banking, societe anonyme or any successor.
"Closing Date": June 21, 2006.
"Closing Date Deposit Amount": With respect to each Closing Date
Deposit Mortgage Loan, a cash amount to be deposited by the related Pooled
Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan Purchase
Agreement, as set forth on Schedule VII, which cash amount represents, as to
each such Pooled Mortgage Loan, the aggregate amount of interest that would have
accrued on the related Cut-off Date Principal Balance of such Closing Date
Deposit Mortgage during the entire month of June 2006 at the related Mortgage
Rate as if such Mortgage Loan accrued interest for such month.
"Closing Date Deposit Mortgage Loan": Any Mortgage Loan set forth on
Schedule VII, for which Mortgage Loan a Monthly Payment is not due in July 2006.
"CMSA": 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, issuers, placement agents 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 one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
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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 reasonably
acceptable to each Master Servicer, each Primary Servicer, the Certificate
Administrator, the Trustee, each Special Servicer and the Controlling Class
Representative.
"CMSA Advance Recoverability Report": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Advance Recoverability 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
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer, each Special
Servicer, the Certificate Administrator and the Trustee. The preparation of each
CMSA Advance Recoverability Report shall constitute a responsibility of the
applicable Master Servicer and shall not constitute a responsibility of any
other party. Each CMSA Loan Periodic Update File prepared by a Master Servicer
shall be accompanied by a CMSA Advance Recoverability Report. Notwithstanding
anything in this Agreement to the contrary, the applicable Master Servicer shall
not be required to deliver a CMSA Advance Recoverability Report (and the
relevant CMSA Loan Periodic Update File need not be accompanied by any such
report) with respect to any Collection Period prior to the date when a
Workout-Delayed Reimbursement Amount or a Nonrecoverable Advance exists with
respect to any Pooled Mortgage Loan for which such Master Servicer is the
applicable Master Servicer.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Comparative Financial Status Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information as
may from time to time be recommended by the CMSA for commercial mortgage-backed
securities transactions generally and is reasonably acceptable to each Master
Servicer and each Special Servicer. Each CMSA Comparative Financial Status
Report shall be based on (1) the most recent rent roll and (2) to the extent
provided to the applicable Master Servicer or the applicable Special Servicer,
(i) in connection with a CMSA Comparative Financial Status Report relating to
quarterly financial information, trailing 12 months of financial information
(normalized; provided, however, that, until such time as CMSA shall adopt a
standard that requires the use of normalized quarterly operating statements and
rent rolls, the applicable Master Servicer shall be permitted to use the
non-normalized quarterly operating statements and rent rolls), if trailing 12
months of financial information was provided to the applicable Master Servicer
or the applicable Special Servicer (as the case may be), or financial
information based on 9 months of operating statements or year-to-date financial
information, if trailing 12 months of financial information was not provided to
the applicable Master Servicer or the applicable Special Servicer (as the case
may be) and 9 months of operating statements or year-to-date financial
information was provided to the applicable Master Servicer or the applicable
Special Servicer (as the case may be) or (ii) in connection with a CMSA
Comparative Financial Status Report relating to annual financial information,
annual operating statements (if provided to the applicable Master Servicer or
the applicable Special Servicer (as the case may be)), normalized. To the extent
the information described above has been provided to the applicable Master
Servicer or the applicable Special Servicer, each CMSA Comparative Financial
Status Report shall present (among other things called for by the form of CMSA
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Comparative Financial Status Report) the occupancy rate, debt service coverage
ratio, net operating income and net cash flow for each Mortgage Loan or
Mortgaged Property covered thereby.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to each Master Servicer and each Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to each Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to each Master Servicer and each Special Servicer.
"CMSA Historical Loan Modification Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Loan Modification 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
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer and each Special
Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary
File; and
(b) the following supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification Report, (iii) CMSA
Historical Liquidation Report, (iv) CMSA REO Status Report, (v) CMSA
Operating Statement Analysis Report, (vi) CMSA Comparative Financial Status
Report, (vii) CMSA Servicer Watch List, (viii) CMSA NOI Adjustment
Worksheet, (ix) CMSA Loan Level Reserve Report, (x) CMSA Reconciliation of
Funds Report and (xi) CMSA Special Servicer Loan File.
Notwithstanding anything in this Agreement to the contrary, in the
event any of the electronic files listed in clause (a) of this definition or any
of the supplemental reports listed in clause (b) of this definition are amended
or changed in any material respect by the CMSA and placed on the CMSA Website or
otherwise recommended by the CMSA for commercial mortgage-backed securities
transactions generally, so long as such electronic files and such supplemental
reports are reasonably acceptable (as applicable) to each Master Servicer and
each Special Servicer, then same shall be used with respect to the Collection
Period that commences at any time following the date that is not later than
three (3) months following adoption of the form thereof by the CMSA.
"CMSA Loan Level Reserve Report": A report substantially in the form
of, and containing the information called for in, the "Loan Level Reserve
Report" as adopted by the CMSA and made available at the CMSA Website.
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"CMSA Loan Periodic Update File": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Periodic Update File" 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to each Master Servicer, each Special Servicer, the
Certificate Administrator and the Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer, each Special Servicer, the Certificate Administrator
and the Trustee. The CMSA Loan Setup File shall indicate (based solely on the
Pooled Mortgage Loan Schedule) whether each related Pooled Mortgage Loan
presented therein is contained in Loan Group 1 or Loan Group 2.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" 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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to each Master Servicer and each Special Servicer and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer and each Special Servicer.
"CMSA Operating Statement Analysis Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Operating Statement Analysis Report" available as of the Closing Date on
the CMSA Website or in such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer.
"CMSA Reconciliation of Funds Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website or in such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Certificate Administrator.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to each Special Servicer.
"CMSA Servicer Watch List": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Servicer
Watch List" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be adopted by the CMSA for
commercial mortgage-backed securities transactions and is reasonably acceptable
to each Master Servicer.
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"CMSA Special Servicer Loan File": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be adopted by
the CMSA for commercial mortgage-backed securities transactions and is
reasonably acceptable to each Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts created and
maintained by each Master Servicer, pursuant to Section 3.04(a), in trust for
the Certificateholders, which shall be entitled "[name of subject Master
Servicer], as a Master Servicer, on behalf of LaSalle Bank National Association
[or name of any successor Trustee], as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2006-PWR12, Collection Account".
"Collection Period": With respect to any Distribution Date, the period
commencing on the day immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing as of the Cut-off Date)
and ending on and including the Determination Date in the calendar month in
which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission or any successor
thereto.
"Companion Note Custodial Account": As defined in Section 3.04(e).
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by a Master Servicer or the Certificate Administrator
from its own funds pursuant to Section 3.19(c) to cover Prepayment Interest
Shortfalls incurred during the related Collection Period.
"Component Notional Amount": The notional amount on which any REMIC
III Component of any Class of Interest Only Certificates accrues interest,
which, as of any date of determination, is equal to the then current
Uncertificated Principal Balance of such REMIC III Component's Corresponding
REMIC II Regular Interest.
"Condemnation Proceeds": All cash amounts actually Received by the
Trust or on behalf of the Trustee, a Master Servicer or a Special Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the applicable Non-Trust Master Servicer or the applicable Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group Intercreditor
Agreement and/or the applicable Non-Trust Servicing Agreement) in connection
with the taking of all or a part of a Mortgaged Property or REO Property by
exercise of the power of eminent domain or condemnation, exclusive of any
portion thereof applied to the restoration of the related Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or required to be
released to the related Borrower or any other third-party in accordance with
applicable law and/or the terms and conditions of the related Mortgage Loan
Documents or any other applicable document.
"Controlling Class": As of any date of determination, the outstanding
Class of Principal Balance Certificates that (a) is the most subordinate (based
on the payment priorities set forth in Section 4.01(a)) outstanding Class of
Principal Balance Certificates and (b) has a Class Principal Balance which is
not less than 25% of the initial Class Principal Balance of such Class; provided
that if no Class of Principal Balance Certificates has as of such date of
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determination a Class Principal Balance not less than 25% of its initial Class
Principal Balance, then the Controlling Class shall be the then most subordinate
(based on the payment priorities set forth in Section 4.01(a)) outstanding Class
of Principal Balance Certificates that has a Class Principal Balance greater
than zero; and provided, further, that, for purposes of this definition, the
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A
Certificates shall be deemed to constitute a single Class of Certificates.
"Controlling Class Certificateholder": Any Holder of Certificates of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a). The
initial Controlling Class Representative shall be ARCap REIT, Inc.
"Corporate Trust Office: The corporate trust office of the Certificate
Administrator or the asset-backed securities trust services office of the
Trustee, as the case may be, at which at any particular time its duties, with
respect to this Agreement shall be administered, which office is as of the
Closing Date located: (i) in the case of the Certificate Administrator, for
Certificate transfer purposes, at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attn: Corporate Trust Services-Bear
Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12, and for all other
purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services, Bear Xxxxxxx Commercial Mortgage Securities Inc.,
2006-PWR12; and (ii) in the case of the Trustee, at 000 Xxxxx XxXxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securitization and Trust
Services Group-Bear Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12.
"Corrected Mortgage Loan": Any Serviced Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
"Corrected Pooled Mortgage Loan": Any Serviced Pooled Mortgage Loan
that is a Corrected Mortgage Loan. Notwithstanding anything to the contrary
contained herein, in no event shall a Non-Trust-Serviced Pooled Mortgage Loan
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"Corresponding Class of Principal Balance Certificates": With respect
to any REMIC III Component of any Class of Interest Only Certificates, the Class
of Principal Balance Certificates opposite which such REMIC III Component is set
forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Corresponding REMIC II Regular Interest": (a) With respect to any
Class of Principal Balance Certificates, the REMIC II Regular Interest opposite
which such Class of Principal Balance Certificates is set forth in the
Preliminary Statement in the table entitled "REMIC III--Corresponding REMIC II
Regular Interests"; and (b) with respect to any REMIC III Component of the Class
X Certificates, the REMIC II Regular Interest opposite which such REMIC III
Component is set forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Cross-Collateralized Group": Any group of Mortgage Loans that are
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is, by
its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan; provided that the Mortgage Loans that are part of any Serviced Mortgage
Loan Group shall not constitute Cross-Collateralized Mortgage Loans.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Pooled Mortgage Loan Sellers or an
Affiliate of any of them.
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"Cut-off Date": With respect to each Mortgage Loan, the Due Date for
the Monthly Payment due on such Mortgage Loan in June 2006 (or, in the case of
any Mortgage Loan that has its first Due Date after June 2006, the later of the
date of origination or the date that would have been its Due Date in June 2006
under the terms of such Mortgage Loan if a Monthly Payment were scheduled to be
due in such month).
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of its Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"Default Charges": Default Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan (or successor
REO Mortgage Loan), any amounts collected thereon, other than late payment
charges, Prepayment Premiums or Yield Maintenance Charges, that represent
interest (exclusive, if applicable, of Post-ARD Additional Interest) in excess
of interest accrued on the principal balance of such Mortgage Loan (or REO
Mortgage Loan) at the related Mortgage Rate, such excess interest arising out of
a default under such Mortgage Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Pooled Mortgage Loan": Any Pooled Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Pooled Mortgage Loan": A Defective Pooled Mortgage Loan that
is purchased or repurchased, as the case may be, from the Trust or replaced with
one or more Replacement Pooled Mortgage Loans, in either case as contemplated by
Section 2.03.
"Depositor": Bear Xxxxxxx Commercial Mortgage Securities Inc., or its
successor in interest.
"Depository": The Depository Trust Company or any successor Depository
hereafter named as contemplated by Section 5.03(c). The nominee of the initial
Depository for purposes of registering those Certificates that are to be
Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated MERS Mortgage": As defined in clause (iii) of the
definition of "Mortgage File".
"Designated Sub-Servicer": Any Sub-Servicer set forth on Schedule III
hereto and any successor to such Sub-Servicer under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and a Master Servicer.
"Determination Date": With respect to any Distribution Date, the fifth
(5th) Business Day preceding such Distribution Date.
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"Directly Operate": With respect to any Administered REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Trustee (or the
applicable Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an Administered REO Property solely because the Trustee (or the
applicable 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 or capital expenditures with respect to such
REO Property.
"Discount Rate": As defined in Section 4.01(c).
"Disqualified Non-United States Tax Person": With respect to any Class
R Certificate, any Non-United States Tax Person or agent thereof other than: (1)
a Non-United States Tax Person that (a) holds such Class R Certificate and, for
purposes of Treasury Regulations Section 1.860G-3(a)(3), is subject to tax under
Section 882 of the Code, (b) certifies that it understands that, for purposes of
Treasury Regulations Section 1.860E-1(c)(4)(ii), as a holder of such Class R
Certificate for United States federal income tax purposes, it may incur tax
liabilities in excess of any cash flows generated by such Class R Certificate
and intends to pay taxes associated with holding such Class R Certificate, and
(c) has furnished the Transferor, the Trustee, the Certificate Administrator and
the Tax Administrator with an effective IRS Form W-8ECI or successor form and
has agreed to update such form as required under the applicable Treasury
regulations; or (2) a Non-United States Tax Person that has delivered to the
Transferor, the Trustee, the Certificate Administrator and the Tax Administrator
an opinion of nationally recognized tax counsel to the effect that (x) the
Transfer of such Class R Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Class R Certificate will not be disregarded for United States
federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, 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 Xxxxxxx Mac, 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) any organization (except 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), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Tax Administrator, based upon an Opinion
of Counsel delivered to the Tax Administrator (but not at the Tax
Administrator's expense) to the effect that the holding of an Ownership Interest
in a Class R Certificate by such Person may cause the Trust 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 Class R
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.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
REMIC III Certificates for any Distribution Date, an amount of interest equal to
the amount of Accrued Certificate Interest in respect of such Class of REMIC III
Certificates for the related Interest Accrual Period, reduced (to not less than
zero) by that portion, if any, of the Net Aggregate Prepayment Interest
Shortfall for such Distribution Date allocated to such Class of REMIC III
Certificates as provided below; provided, however, that if the Class Principal
Balance of such Class of REMIC III Certificates is deemed to have been increased
immediately prior to such Distribution Date pursuant to the proviso to the
definition of "Class Principal Balance" because the Principal Distribution
Amount for such Distribution Date includes any collections of amounts that (x)
had previously been determined to constitute Nonrecoverable Advances, (y) were
reimbursed to a party to this Agreement from the principal portions of P&I
Advances and/or payments or other collections of principal on
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the Mortgage Pool in a Collection Period prior to the one related to such
Distribution Date (pursuant to subsection (II)(iv) of Section 3.05(a)) and (z)
were recovered in the Collection Period related to such Distribution Date, then
the Distributable Certificate Interest for such Class of REMIC III Certificates
and such Distribution Date shall equal the sum of (i) the amount of the
Distributable Certificate Interest for such Class of REMIC III Certificates and
such Distribution Date, calculated as otherwise provided above without regard to
this proviso, and (ii) an amount equal to the interest that would have accrued
(on a 30/360 Basis), at the Pass-Through Rate for such Class of REMIC III
Certificates and in effect for such Interest Accrual Period, on a principal
amount equal to the deemed increase in such Class Principal Balance, during such
Interest Accrual Period and each prior Interest Accrual Period related to a
Distribution Date that occurred subsequent to the earliest Distribution Date on
which a Realized Loss was allocated to such Class of REMIC III Certificates
pursuant to Section 4.04. A portion of the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated to each Class
of Principal Balance Certificates in an amount equal to the product of (i) the
amount of such Net Aggregate Prepayment Interest Shortfall and (ii) a fraction,
the numerator of which is the Accrued Certificate Interest for such Class of
Principal Balance Certificates for such Distribution Date and the denominator of
which is the aggregate amount of Accrued Certificate Interest for all Classes of
Principal Balance Certificates for such Distribution Date. No portion of any Net
Aggregate Prepayment Interest Shortfall for any Distribution Date shall be
allocated to any Class of Interest Only Certificates.
"Distribution Account": The segregated account or accounts created and
maintained by the Certificate Administrator on behalf of the Trustee, pursuant
to Section 3.04(b), in trust for the Certificateholders, which shall be entitled
"Xxxxx Fargo Bank, National Association [or the name of any successor
Certificate Administrator], as Certificate Administrator, on behalf of LaSalle
Bank National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, 2006-PWR12, Distribution
Account".
"Distribution Date": The 11th day of any month, or if such 11th day is
not a Business Day, the Business Day immediately following such 11th day,
commencing in July 2006.
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO
Mortgage Loan, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on the related Mortgage Loan had been scheduled to be
first due.
"XXXXX": The Electronic Data Gathering, Analysis, and Retrieval System
of the Commission, which is the computer system for the receipt, acceptance,
review and dissemination of documents submitted to the Commission in electronic
format.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the long-term deposit
or long-term unsecured debt obligations of which are rated no less than "A2" by
Moody's and "AA-" by S&P (or "A-" by S&P so long as the short-term deposit or
short-term unsecured debt obligations of such depository institution or trust
company are rated no less than "A-1" by S&P), if the deposits are to be held in
the account for more than thirty (30) days, or the short-term deposit or
short-term unsecured debt obligations of which are rated no less than "P-1" by
Moody's and "A-1" by S&P, if the deposits are to be held in the account for
thirty (30) days or less, in any event at any time funds are on deposit therein,
(ii) a segregated trust account maintained with the trust department of a
federal or state chartered depository institution or trust company (which,
subject to the remainder of this clause (ii), may include the Certificate
Administrator or the Trustee) acting in its fiduciary capacity, and which, in
either case, has a combined capital and surplus of at least $50,000,000 and is
subject to supervision or examination by federal or state authority and to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b) and whose long-term senior unsecured debt
obligations or other long-term deposits, or the
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trustee's or paying agent's parent's long-term senior unsecured debt obligations
or other long-term deposits, are rated at least "Baa3" by Moody's, (iii) for so
long as WFB serves as a Master Servicer under this Agreement, an account
maintained with WFB or Xxxxx Fargo Bank Iowa, N.A., each a wholly-owned
subsidiary of Xxxxx Fargo & Co., provided that subsidiary's or its parent's (A)
commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated "P-1" by Moody's and "A-1" by S&P, 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 "Aa3" by Moody's and "AA-" by S&P (or "A-" by S&P
so long as the short-term deposit or short-term unsecured debt obligations of
such subsidiary or its parent are rated no less than "A-1" by S&P), if the
deposits are to be held in the account for more than 30 days, or (iv) an account
maintained with any one of the following: (x) in the case of an account that
does not and may not potentially contain any funds related to any Serviced
Non-Pooled Mortgage Loan, another insured depository institution that is
acceptable to each Rating Agency for the Rated Certificates (as evidenced by a
written confirmation to the Trustee from each Rating Agency that the use of such
account would not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates), (y) in the case of an account that
does or may potentially contain any funds related to any Serviced Non-Pooled
Mortgage Loan and also does or may potentially contain any funds related to one
or more Pooled Mortgage Loans, another insured depository institution that is
acceptable to each Rating Agency for the Rated Certificates and each applicable
Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities
(as evidenced by a written confirmation to the Trustee from each Rating Agency
that the use of such account would not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates rated by such
Rating Agency and also from each applicable Rating Agency that the use of such
account would not, in and of itself, result in an Adverse Rating Event with
respect to any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, and (z) in the case of
an account that does or may potentially contain any funds related to any
Serviced Non-Pooled Mortgage Loan and does not and may not potentially contain
any funds related to one or more Pooled Mortgage Loans, another insured
depository institution that is acceptable to each applicable Rating Agency for
the applicable Non-Pooled Pari Passu Companion Loan Securities (as evidenced by
a written confirmation to the Trustee from each such applicable Rating Agency
that the use of such account would not, in and of itself, result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency), as applicable.
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the applicable Special Servicer is
required to make or to request a Master Servicer to make, that must be made
within five Business Days of such Special Servicer becoming aware that it must
be made in order to avoid any material penalty, any material harm to a Mortgaged
Property securing a Serviced Mortgage Loan or any other material adverse
consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property securing a Serviced Mortgage Loan or any Administered REO Property, any
insurance policy covering pollution conditions and/or other environmental
conditions that is maintained from time to time in respect of such Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by a Master Servicer or a
Special Servicer for the account of the Borrower under any Serviced Mortgage
Loan for application toward the payment of real estate taxes, assessments,
insurance premiums (including with respect to any Environmental Insurance
Policy), ground rents (if applicable) and similar items in respect of the
related Mortgaged Property.
"Euroclear": The Euroclear System or any successor thereto.
"Event of Default": As defined in Section 7.01(a).
"Excess Liquidation Proceeds": The excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially Serviced Pooled
Mortgage Loan or an Administered REO Property (or the proceeds of the final
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payment (including any full, partial or discounted payoff) on a defaulted Pooled
Mortgage Loan or a Pooled Mortgage Loan that is a Corrected Mortgage Loan that
were Received by the Trust, net of any and all fees, expenses and costs payable
therefrom), over (b) the sum of (i) the amount needed to pay all principal,
interest (including Additional Interest (if applicable) and Default Interest),
Prepayment Premiums or Yield Maintenance Charges (as applicable) and late
payment charges payable with respect to such Pooled Mortgage Loan or the related
REO Pooled Mortgage Loan, as the case may be (together with, without
duplication, any outstanding Unliquidated Advances in respect of any such
principal or interest), in full, (ii) any other fees that would constitute
Additional Master Servicing Compensation and/or Additional Special Servicing
Compensation, (iii) any related unreimbursed Servicing Advances (together with,
without duplication, outstanding Unliquidated Advances in respect of prior
Servicing Advances), (iv) all unpaid Advance Interest on any related Advances
(but (for the avoidance of doubt) excluding any Unliquidated Advances), (v) any
related Liquidation Fee and/or Special Servicing Fees paid or payable in respect
of such Specially Serviced Mortgage Loan or the related REO Pooled Mortgage
Loan, (vi) any other Additional Trust Fund Expenses paid or payable in respect
of such Pooled Mortgage Loan or REO Property, and (vii) in the case of any REO
Property relating to a Serviced Mortgage Loan Group, any portion of such Net
Liquidation Proceeds payable to any one or more of the related Serviced
Non-Pooled Mortgage Loan Noteholder(s).
"Excess Liquidation Proceeds Account": The segregated account created
and maintained by the Certificate Administrator in the name of the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association [or name of any successor Trustee],
as Trustee, in trust for the registered holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates,
2006-PWR12, Excess Liquidation Proceeds Account".
"Excess Servicing Fees": With respect to each Serviced Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), that portion of the
Master Servicing Fees that accrue at a per annum rate equal to the Excess
Servicing Fee Rate.
"Excess Servicing Fee Rate": With respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), a rate per
annum equal to (i) in the case of a Pooled Mortgage Loan, the annual rate
specified as the "Excess Fee Rate" on the Pooled Mortgage Loan Schedule and (ii)
in the case of each Non-Pooled Mortgage Loan, zero (0) basis points; provided
that such rate shall be subject to reduction at any time following any
resignation of a Master Servicer pursuant to Section 6.04 (if no successor is
appointed in accordance with Section 6.04(b)) or any termination of a Master
Servicer pursuant to Section 7.01, to the extent reasonably necessary (in the
sole discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer (which successor may include the Trustee) that meets the
requirements of Section 7.02.
"Excess Servicing Fee Right": With respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the right to receive
Excess Servicing Fees. In the absence of any transfer of the Excess Servicing
Fee Right, the related Master Servicer shall be the owner of such Excess
Servicing Fee Right.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bear, Xxxxxxx & Co. Inc., (ii)
Xxxxxx Xxxxxxx & Co. Incorporated, (iii) any Person directly or indirectly,
through one or more intermediaries, controlling, controlled by or under common
control with Bear, Xxxxxxx & Co. Inc. or Xxxxxx Xxxxxxx & Co. Incorporated and
(iv) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i), (ii) and (iii) is a manager or co-manager with
respect to a Class of Certificates that is investment grade rated by at least
one Rating Agency.
"Fair Value": With respect to any Specially Designated Defaulted
Pooled Mortgage Loan, the amount that, in the applicable Special Servicer's
reasonable judgment, taking into account the factors set forth in the first
sentence of the second paragraph of Section 3.18(b) and such other factors as
such Special Servicer reasonably deems appropriate, is the fair value of such
Mortgage Loan.
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"Xxxxxx Mae": The Federal National Mortgage Association or any
successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the applicable
Special Servicer with respect to any Specially Serviced Mortgage Loan, Corrected
Mortgage Loan or Administered REO Property, or by the applicable Master Servicer
with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property, that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the
applicable Special Servicer or such Master Servicer has determined, in
accordance with the Servicing Standard, will be ultimately Received by the
Trust; provided that the term Final Recovery Determination shall not apply to:
(i) a Mortgage Loan that was paid in full (including by means of a payoff on
behalf of the Borrower, or the purchase of such Mortgage Loan, by a mezzanine
lender or another creditor of the related Borrower in connection with a Mortgage
Loan default, as set forth in the related intercreditor agreement) or (ii) a
Mortgage Loan or REO Property, as the case may be, that was purchased by (a) any
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement, (b) a Purchase Option Holder or its assignee pursuant to
Section 3.18, (c) any Controlling Class Certificateholder(s), a Master Servicer
or the General Special Servicer pursuant to Section 9.01, (d) any related
Non-Pooled Subordinate Noteholder pursuant to a Mortgage Loan Group
Intercreditor Agreement (if such Mortgage Loan is included in a Serviced
Mortgage Loan Group), or (e) any other party with a purchase option in respect
of a Non-Trust-Serviced Pooled Mortgage Loan pursuant to the related Mortgage
Loan Group Intercreditor Agreement and/or the related Non-Trust Servicing
Agreement; and provided, further, that, for purposes of making any such
determination with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, the applicable Master Servicer shall be entitled to rely
on, and shall be required to follow, any comparable determination made by the
related Non-Trust Master Servicer or the related Non-Trust Special Servicer.
"Fiscal Agent": Any fiscal agent appointed by the Trustee as provided
in Section 8.13.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the other parties hereto, and specific ratings of Fitch, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of Fitch,
be deemed to refer to such applicable rating category of Fitch, without regard
to any plus or minus or other comparable rating qualification.
"Form 8-K Disclosure Information": As defined in Section 11.09.
"Form 8-K Filing Deadline": As defined in Section 11.09.
"Form 8-K Reportable Event": As defined in Section 11.09.
"Form 10-D Filing Deadline": As defined in Section 11.06.
"Form 10-K Filing Deadline": As defined in Section 11.07.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"GAAP": Generally accepted accounting principles in the United States.
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"General Special Servicer": ARCap Servicing, Inc. (or its successor in
interest), in its capacity as special servicer with respect to the Mortgage
Loans (exclusive of the 0000 Xxxxxxxx Loan Group and the Tuscany Plaza Loan
Group) and any related REO Properties hereunder, or any successor special
servicer with respect to the Mortgage Loans (exclusive of the 0000 Xxxxxxxx Loan
Group and the Tuscany Plaza Loan Group) and any related REO Properties appointed
as provided herein.
"Global Certificates": The Rule 144A Global Certificates and the
Regulation S Global Certificates, collectively.
"Grantor Trust": A grantor trust as defined under Subpart E of Part 1
of Subchapter J of the Code.
"Grantor Trust Pool": Any of Grantor Trust V or Grantor Trust R.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of the
Code, including Treasury Regulations Section 301.7701-4(c)(2).
"Grantor Trust R": The Grantor Trust designated as such in Section
2.17(b).
"Grantor Trust V": The Grantor Trust designated as such in Section
2.17(a).
"Ground Lease": The ground lease pursuant to which any Borrower holds
a leasehold interest in the related Mortgaged Property, together with any
estoppels or other agreements executed and delivered by the ground lessor in
favor of the lender under the related Mortgage Loan(s).
"Group Environmental Insurance Policy": Any Environmental Insurance
Policy that is maintained from time to time in respect of more than one
Mortgaged Property or REO Property.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including those so identified pursuant to
CERCLA or any other federal, state or local environmental related laws and
regulations now existing or hereafter enacted, and specifically including
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Holder": As defined in the definition of "Certificateholder".
"Indemnifying Party": As defined in Section 11.14.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, each Pooled
Mortgage Loan Seller, each Master Servicer, each Primary Servicer, each Special
Servicer, the Certificate Administrator, the Tax Administrator, the Trustee,
each Non-Trust Master Servicer (insofar as the relevant matter involves a
Non-Trust-Serviced Pooled Mortgage Loan (whether alone or together with one or
more other Pooled Mortgage Loans)), each Non-Trust Special Servicer (insofar as
the relevant matter involves a Non-Trust-Serviced Pooled Mortgage Loan (whether
alone or together with one or more other Pooled Mortgage Loans)), the
Controlling Class Representative and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, either Primary Servicer, any Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the related Non-Trust Master
Servicer (insofar as the relevant matter involves a Non-Trust-Serviced Pooled
Mortgage Loan), the related Non-Trust Special Servicer (insofar as the relevant
matter involves a Non-Trust-Serviced Pooled Mortgage Loan), the Controlling
Class Representative or any Affiliate thereof, and (iii) is not connected with
the Depositor, any Pooled Mortgage Loan Seller, either Master Servicer, either
Primary Servicer, any Special Servicer, the Certificate Administrator, the Tax
Administrator, the Trustee, the related Non-Trust Master Servicer (insofar as
the relevant matter
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involves a Non-Trust-Serviced Pooled Mortgage Loan), the related Non-Trust
Special Servicer (insofar as the relevant matter involves a Non-Trust-Serviced
Pooled Mortgage Loan), the Controlling Class Representative or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor, any Pooled Mortgage
Loan Seller, either Master Servicer, either Primary Servicer, any Special
Servicer, the Trustee, the applicable Non-Trust Master Servicer, the applicable
Non-Trust Special Servicer, the Controlling Class Representative or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, such Pooled Mortgage
Loan Seller, such Master Servicer, such Primary Servicer, such Special Servicer,
the Trustee, such Non-Trust Master Servicer, such Non-Trust Special Servicer,
the Controlling Class Representative or any such Affiliate thereof, as the case
may be, provided that such ownership constitutes less than 1% of the total
assets owned by such Person.
"Independent Contractor": (a) Any Person that would be an "independent
contractor" with respect to any 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 that section shall be considered to
be met by any Person that owns, directly or indirectly, 35% or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to either Master
Servicer, any Special Servicer, the Trustee or the Trust, delivered to the
Trustee), provided that (i) the Trust does not receive or derive any income from
such Person and (ii) the relationship between such Person and the Trust is at
arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5); or (b) any other Person upon receipt by the Trustee of an Opinion
of Counsel, which shall be at no expense to the Trustee or the Trust, to the
effect that the taking of any action in respect of any Administered 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
Administered REO Property to cease to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code, or cause any income realized in
respect of such Administered REO Property to fail to qualify as Rents from Real
Property.
"Initial Pool Balance": The aggregate Cut-off Date Principal Balance
of all the Original Pooled Mortgage Loans.
"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO Property,
any hazard insurance policy, terrorism insurance policy, flood insurance policy,
title insurance policy, earthquake insurance policy, Environmental Insurance
Policy, business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy and
received by or on behalf of the Trustee, a Master Servicer, a Special Servicer
(including with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the related Non-Trust Master Servicer or the related Non-Trust
Special Servicer pursuant to the related Mortgage Loan Group Intercreditor
Agreement and/or the related Non-Trust Servicing Agreement), to the extent such
proceeds are not applied to the restoration of the related Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or released to
the related Borrower or any other third-party pursuant to the terms of the
related Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest, any REMIC III Certificate or any particular REMIC III
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Component of a Class of Interest Only Certificates, in each case consisting of
one of the following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any REMIC III Certificate or any
particular REMIC III Component of a Class of Interest Only Certificates, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Only Certificates": The Class X Certificates.
"Interest Reserve Account": The segregated account (or sub-account of
the Distribution Account) created and maintained by the Certificate
Administrator on behalf of the Trustee, pursuant to Section 3.04(c), in trust
for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank, National
Association [or the name of any successor Certificate Administrator], as
Certificate Administrator, on behalf of LaSalle Bank National Association [or
the name of any successor Trustee], as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2006-PWR12, Interest Reserve Account".
"Interest Reserve Amount": With respect to each Pooled Mortgage Loan
that is an Interest Reserve Loan (or the related successor REO Pooled Mortgage
Loan), for any Distribution Date that occurs during February of 2007 or February
of any year thereafter or during January of 2007 or January of any year
thereafter that is not a leap year, an amount equal to one day's interest
accrued at the related Net Mortgage Rate on the related Stated Principal Balance
as of the end of the Collection Period related to such Distribution Date (or, in
the case of any Pooled Mortgage Loan for which the Due Date occurs on a day
other than the first day of each month, as of the Due Date in the month in which
such Distribution Date occurs), but prior to giving effect to the application of
any amounts due on the Due Date occurring in such Collection Period (or, in the
case of any Pooled Mortgage Loan for which the Due Date occurs on a day other
than the first day of each month, due on the Due Date in the month in which such
Distribution Date occurs), to the extent that a Monthly Payment is Received by
the Trust with respect to such Interest Reserve Loan for the related Due Date in
the same month as such Distribution Date on or before the related Master
Servicer Remittance Date or a P&I Advance is made under this Agreement with
respect to such Interest Reserve Loan by such Distribution Date. For purposes of
calculating Interest Reserve Amounts, the Net Mortgage Rate for each Interest
Reserve Loan shall be the Net Mortgage Rate in effect (including as a result of
any step-up provision) under the original terms of such Interest Reserve Loan in
effect as of the Closing Date, without regard to any modifications, extensions,
waivers or amendments of such Interest Reserve Loan subsequent to the Closing
Date (whether entered into by the applicable Master Servicer, the applicable
Special Servicer, the applicable Non-Trust Master Servicer or the applicable
Non-Trust Special Servicer or in connection with any bankruptcy, insolvency or
other similar proceeding involving the related Borrower).
"Interest Reserve Loan": Any Pooled Mortgage Loan that is an
Actual/360 Mortgage Loan (or any successor REO Pooled Mortgage Loan with respect
thereto).
"Investment Account": Each of the Collection Accounts, the Companion
Note Custodial Accounts, the Subordinate Note Custodial Accounts, the Servicing
Accounts, the Reserve Accounts, the REO Accounts, the Distribution Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account.
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor thereto.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
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"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": (a) With respect to any Pooled Mortgage Loan, all
amounts Received by the Trust thereon during any Collection Period, whether as
payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which (as applied under Section 1.03) represent collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect of such Pooled Mortgage Loan
due or deemed due on a Due Date in a previous Collection Period (or, in the case
of any Pooled Mortgage Loan for which the Due Date occurs on a day other than
the first day of each month, due or deemed due on the Due Date in the calendar
month preceding the month in which such Collection Period ends) or on a Due Date
during or prior to the month of the Cut-off Date for such Pooled Mortgage Loan,
and not previously Received by the Trust; and (b) with respect to any REO Pooled
Mortgage Loan, all amounts Received by the Trust in connection with the related
REO Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
(as applied under Section 1.03) represent collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of the predecessor Pooled Mortgage Loan or
the principal and/or interest portions of an Assumed Monthly Payment in respect
of such REO Pooled Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period (or, in the case of any Pooled Mortgage Loan for which the Due
Date occurs on a day other than the first day of each month, due or deemed due
on the Due Date in the calendar month preceding the month in which such
Collection Period ends) and not previously Received by the Trust. Late
Collections do not include Default Charges.
"Latest Possible Maturity Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any REMIC III Certificate, the
"latest possible maturity date" thereof, calculated solely for purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any third-party
letter of credit delivered by or at the direction of the related Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund or otherwise pledged
or assigned by the related Borrower as Additional Collateral.
"Liquidation Event": (a) With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full, (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan, (iii) such Mortgage
Loan is repurchased or replaced by a Pooled Mortgage Loan Seller pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by Section
2.03, (iv) such Mortgage Loan is purchased by the Special Servicer, the Majority
Controlling Class Certificateholder(s) or any assignee of either of them
pursuant to Section 3.18, (v) such Mortgage Loan is purchased by any Controlling
Class Certificateholder(s), a Master Servicer or the Special Servicer pursuant
to Section 9.01, (vi) such Mortgage Loan is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01, (vii) in the case of any Pooled Mortgage Loan that is included in a
Mortgage Loan Group that includes one or more Non-Pooled Mortgage Loans, such
Mortgage Loan is acquired by a related Non-Pooled Noteholder pursuant to the
related Mortgage Loan Group Intercreditor Agreement, (viii) such Mortgage Loan
is paid off or purchased by the holder of a related mezzanine loan or another
creditor of the Borrower in connection with a Mortgage Loan default, if so
permitted and set forth in the related intercreditor agreement, or (ix) in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, such Mortgage Loan is
purchased by a holder of a purchase option with respect thereto pursuant to the
related Non-Trust Servicing Agreement and/or the related Mortgage Loan Group
Intercreditor Agreement; and (b) with respect to any REO Property (and the
related REO Mortgage Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property, (ii) such REO Property
is repurchased or replaced by a Pooled Mortgage Loan Seller pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by Section
2.03, (iii) such REO Property is purchased by a Master Servicer, the General
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01, or (iv) such REO Property is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially
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Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or Section 3.18
(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": The fee designated as such in, and payable to the
applicable Special Servicer in connection with certain events in respect of a
Specially Serviced Mortgage Loan or an REO Property pursuant to, Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) Received by the Trust in
connection with: (i) the liquidation of a Mortgaged Property, REO Property or
other collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted Pooled
Mortgage Loan by the Special Servicer, the Majority Controlling Class
Certificateholder(s) or any assignee of either of them pursuant to Section 3.18;
(iv) the repurchase or replacement of a Pooled Mortgage Loan or REO Property by
a Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement as contemplated by Section 2.03 of this Agreement; (v) the
purchase of a Pooled Mortgage Loan or REO Property by a Master Servicer, a
Special Servicer and/or any Controlling Class Certificateholder(s) pursuant to
Section 9.01; (vi) the acquisition of any Pooled Mortgage Loan or REO Property
by the Sole Certificateholder(s) in exchange for all the Certificates pursuant
to Section 9.01; (vii) the purchase of a Pooled Mortgage Loan included in a
Mortgage Loan Group that includes one or more Non-Pooled Subordinate Loans by a
related Non-Pooled Subordinate Noteholder pursuant to the related Mortgage Loan
Group Intercreditor Agreement, (viii) the purchase of a Non-Trust-Serviced
Pooled Mortgage Loan by any holder of a purchase option with respect thereto
pursuant to the related Non-Trust Servicing Agreement and/or the related
Mortgage Loan Group Intercreditor Agreement; or (ix) the payoff or purchase of a
Pooled Mortgage Loan or REO Property by the holder of a related mezzanine loan
or another creditor of the Borrower in connection with a Mortgage Loan default,
if so permitted and set forth in the related intercreditor agreement.
"Loan Group" shall mean either of Loan Group 1 or Loan Group 2.
"Loan Group 1" shall mean, collectively, all of the Pooled Mortgage
Loans for which the designation "Group 1" appears opposite such respective
Pooled Mortgage Loans on the Pooled Mortgage Loan Schedule and any successor REO
Pooled Mortgage Loans with respect thereto.
"Loan Group 2" shall mean, collectively, all of the Pooled Mortgage
Loans for which the designation "Group 2" appears opposite such respective
Pooled Mortgage Loans on the Pooled Mortgage Loan Schedule and any successor REO
Pooled Mortgage Loans with respect thereto.
"Loan Specific Special Servicer" shall mean (i) with respect to the
0000 Xxxxxxxx Loan Group and any related REO Properties, the 0000 Xxxxxxxx
Special Servicer, and (ii) with respect to the Tuscany Plaza Loan Group and any
related REO Properties, the Tuscany Plaza Special Servicer.
"Majority Controlling Class Certificateholder(s)": As of any date of
determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer": With respect to any Mortgage Loan and any REO
Property acquired in respect thereof, either (a) if such Mortgage Loan is a PMCF
Pooled Mortgage Loan, PAR, or any successor thereto (as master servicer)
appointed as provided herein, or (b) if such Mortgage Loan is a BSCMI Pooled
Mortgage Loan, a PCF Pooled
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Mortgage Loan, a PCFII Pooled Mortgage Loan, a WFB Pooled Mortgage Loan or a
Nationwide Pooled Mortgage Loan, WFB, or any successor thereto (as master
servicer) appointed as provided herein. Any reference herein to a "Master
Servicer" hereunder (including Articles VI and VII hereof) shall, if such Master
Servicer is the one described by clause (a) of this definition, also be
construed to refer to the Servicer Report Administrator to the extent of the
rights granted to and obligations imposed on the Servicer Report Administrator
under this Agreement.
"Master Servicer Remittance Amount": With respect to either Master
Servicer for any Master Servicer Remittance Date, an amount equal to (a) all
amounts on deposit in such Master Servicer's Collection Account as of 11:00
a.m., New York City time, on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to any Pooled Mortgage Loan that are due on a Due Date following the end
of the related Collection Period (other than, in the case of any Pooled Mortgage
Loan for which the Due Date is on the 2nd, 3rd, 4th or 5th day of each month and
such day in the current month happens to be later than the end of such related
Collection Period, in which case such collected Monthly Payment shall not be
withheld until the following month as otherwise contemplated by this clause
(i)), (ii) to the extent not covered by clause (i) above, any payments of
principal (including Principal Prepayments) and interest (including Post-ARD
Additional Interest), Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds Received by the Trust with respect to any Pooled Mortgage Loan or REO
Property after the end of the related Collection Period, (iii) any Prepayment
Premiums and/or Yield Maintenance Charges Received by the Trust with respect to
any Pooled Mortgage Loan or successor REO Pooled Mortgage Loan with respect
thereto after the end of the related Collection Period, (iv) any Excess
Liquidation Proceeds, (v) any amounts payable or reimbursable to any Person from
such Collection Account pursuant to clauses (ii) through (xxi) of Section
3.05(a), and (vi) any amounts deposited in such Collection Account in error;
provided that the Master Servicer Remittance Amount with respect to each Master
Servicer for the Master Servicer Remittance Date that occurs in the same
calendar month as the anticipated Final Distribution Date shall be calculated
without regard to clauses (b)(i), (b)(ii), (b)(iii) and (b)(iv) of this
definition and provided, further, however, that the foregoing provisions of this
definition shall be construed in a manner that is consistent with Section
3.02(d).
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the fee designated as such
and payable to the applicable Master Servicer pursuant to Section 3.11(a). The
Master Servicing Fee for each Serviced Mortgage Loan includes the monthly fees
payable to any applicable primary servicer or subservicer engaged by the
applicable Master Servicer and such Master Servicer shall pay such fees to such
primary servicer or subservicer in accordance with the terms of the applicable
Primary Servicing Agreement or Subservicing Agreement.
"Master Servicing Fee Rate": With respect to (i) each Pooled Mortgage
Loan (other than the Non-Trust-Serviced Mortgage Loan) and any successor REO
Pooled Mortgage Loan with respect thereto, a rate per annum equal to (a) the
rate per annum specified as the "Administrative Fee Rate" on the Pooled Mortgage
Loan Schedule, minus (b) the sum of (x) the Servicer Report Administrator Fee
Rate, (y) the Trustee Fee Rate and (z) the Certificate Administrator Fee Rate;
(ii) the Non-Trust Serviced Pooled Mortgage Loan, a rate per annum equal to zero
basis points (0.0000%); (iii) the 0000 Xxxxxxxx Non-Pooled Subordinate Loan, a
rate per annum equal to zero basis points (0.00%); and (iv) the Tuscany Plaza
Non-Pooled Subordinate loan, a rate per annum equal to three basis points
(0.03%). The parties acknowledge that the Master Servicing Fee Rate for each
Serviced Mortgage Loan includes the rate at which applicable primary and
sub-servicing fees accrue; therefore, if the Master Servicing Fee Rate is zero,
there is no primary or subservicing fee that may be paid on such mortgage loan.
"Material Breach": With respect to any Pooled Mortgage Loan, any
Breach that materially and adversely affects the interests of the
Certificateholders, or any of them, with respect to the affected Pooled Mortgage
Loan, including but not limited to a material and adverse effect on any of the
distributions payable with respect to any of the Certificates or on the value of
such Certificates.
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"Material Document Defect": With respect to any Pooled Mortgage Loan,
any Document Defect that materially and adversely affects the interests of the
Certificateholders, or any of them, with respect to the affected Pooled Mortgage
Loan, including but not limited to a material and adverse effect on any of the
distributions payable with respect to any of the Certificates or on the value of
such Certificates. Notwithstanding the foregoing, the absence of a Specially
Designated Mortgage Loan Document following the date on which such Specially
Designated Mortgage Loan Document is required to be delivered to the Trustee as
described in Section 2.01(d) shall also constitute a Material Document Defect.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the
applicable Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to, bringing
Monthly Payments current with respect to such Pooled Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
Appraisal delivered to the applicable Special Servicer (at the expense of
the related Borrower and upon which such Special Servicer may conclusively
rely); or
(c) in the reasonable judgment of the Special Servicer, otherwise
materially impairs the security for such Pooled Mortgage Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, as of any Due
Date, the scheduled monthly debt service payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum monthly debt
service payment required to be paid on a current basis) on such Mortgage Loan
that is actually payable by the related Borrower from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, extension, waiver or amendment granted
or agreed to by the applicable Master Servicer or the applicable Special
Servicer pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related
Non-Trust Special Servicer pursuant to the relevant Non-Trust Servicing
Agreement)), including any Balloon Payment payable in respect of such Mortgage
Loan on such Due Date; provided that the Monthly Payment due in respect of any
Mortgage Loan shall not include Default Interest; and provided, further, that
the Monthly Payment due in respect of any ARD Mortgage Loan after its
Anticipated Repayment Date shall not include Additional Interest.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Moody's herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated. References herein to
"applicable rating category" (other than such references to "highest applicable
rating category") shall, in the case of Moody's, be deemed to refer to such
applicable rating category of Moody's, without regard to any plus or minus or
other comparable rating qualification.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust, deed to
secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
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"Mortgage File": With respect to any Pooled Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order of
LaSalle Bank National Association, as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2006-PWR12, without recourse, representation or
warranty" or in blank, and further showing a complete, unbroken chain of
endorsement from the originator; or alternatively, if the original executed
Mortgage Note has been lost, a lost note affidavit and indemnity with a
copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof prior to
the assignment to the Trustee, in each case (unless the particular item has
been delivered to but not returned from the applicable recording office)
with evidence of recording indicated thereon; provided that if the original
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, a copy) of
the Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th 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 the public recording office retains
the original or because such original Mortgage has been lost, there shall
be delivered to the Trustee or a Custodian on its behalf 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
Pooled Mortgage Loan Seller or a statement from the title agent to the
effect 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 or retained by the
appropriate public recording office, a certification by the appropriate
county recording office where such Mortgage is recorded that such copy is a
true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record thereof prior to the Trustee
(which, in the case of each related Mortgage that has been recorded in the
name of MERS or its designee (each such Mortgage a "Designated MERS
Mortgage"), may be MERS), if any, in each case (unless the particular item
has not been returned from the applicable recording office) with evidence
of recording thereon;
(iv) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, an original executed assignment, in recordable form (except for
recording information not yet available if the instrument being assigned
has not been returned from the applicable recording office), of (A) the
Mortgage and (B) any related Assignment of Leases (if such item is a
document separate from the Mortgage), in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-PWR12" or, in the case of any Pooled
Mortgage Loan included in a Serviced Mortgage Loan Group, in favor of
"LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12, and in
its capacity as lead lender on behalf of ['the Non-Pooled Mortgage Loan
Noteholder(s) secured by the [insert name of mortgaged property]" (or, in
each case, a copy thereof, certified to be the copy of such assignment
submitted for recording); provided, however, that, if the related Mortgage
is a Designated MERS Mortgage, no assignment of Mortgage or any related
Assignment of Leases in favor of the Trustee will be required to be
prepared or delivered and instead, the related Pooled Mortgage Loan Seller
shall take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm (and shall
place into the Mortgage File such confirmation in writing from MERS) that
it is shown as, the sole owner of the related Mortgage and any related
Assignment of Leases on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS; provided, further, in the event that MERS is unable to foreclose on
any Mortgaged Property or to take any action as authorized in the related
Mortgage, the Master Servicer or the Special Servicer, as applicable, shall
use its commercially reasonable efforts to take action as it may deem in
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reasonable judgment exercised in accordance with the Servicing Standard to
cause such assignments as are necessary to effectuate a transfer of the
relevant documents from MERS to the Trustee on behalf of the Trust
(provided that the Master Servicer or the Special Servicer, as the case may
be, shall take no such action if such action shall (x) cause either the
Master Servicer or the Special Servicer, as the case may be, to violate the
Servicing Standard, (y) expose the Master Servicer or the Special Servicer,
as the case may be, or their officers, directors, employees or agents to
any claim, suit or liability outside the scope of ordinary creditor's
rights litigation (for which the Master Servicer and Special Servicer are
indemnified hereunder), or (z) expand materially the scope of the Master
Servicer's or the Special Servicer's responsibilities under this
Agreement), and the Trustee shall take all actions as are necessary to
confirm that the Trustee on behalf of the Trust is the owner of the related
Mortgage;
(v) an original or a copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee (which, in
the case of a Designated MERS Mortgage, may be MERS), if any;
(vi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of "LaSalle Bank National Association, in its capacity
as Trustee for the registered holders of Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-PWR12" (or, in the case of any Pooled Mortgage Loan included in a
Serviced Mortgage Loan Group, in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-PWR12, and in its capacity as lead
lender on behalf of ['the Non-Pooled Mortgage Loan Noteholder(s) secured by
the [insert name of mortgaged property]", which assignment may (in any
case) be included as part of the corresponding assignment of Mortgage
referred to in clause (iv) above; provided, however, that, if the related
Mortgage is a Designated MERS Mortgage, no assignment of a related Security
Agreement in favor of the Trustee will be required to be prepared or
delivered and instead, the related Pooled Mortgage Loan Seller shall take
all actions as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm (and shall place into
the Mortgage File such confirmation in writing from MERS) that it is shown
as, the sole 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;
(vii) originals or copies of any assumption, modification,
written assurance, consolidation, extension and substitution agreements, if
any, with evidence of recording thereon if the applicable document or
instrument being modified or assumed, was recorded (unless the particular
item has not been returned from the applicable recording office), in those
instances where the terms or provisions of the Mortgage, Mortgage Note or
any related security document have been materially modified or the Mortgage
Loan has been assumed;
(viii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if the policy has not yet been issued, an original or copy of a written
commitment "marked-up" at the closing of such Mortgage Loan, interim binder
or the pro forma title insurance policy, in each case evidencing a binding
commitment to issue such policy);
(ix) (A) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to the Trustee (but only to
the extent the related Pooled Mortgage Loan Seller had possession of such
UCC Financing Statements prior to the Closing Date) and (B) except in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, an original assignment
thereof, in form suitable for filing, in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2006-PWR12" or, in the case of any Pooled
Mortgage Loan included in a Serviced
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Mortgage Loan Group, in favor of "LaSalle Bank National Association, in its
capacity as Trustee for the registered holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-PWR12, and in its capacity as lead lender on behalf of ['the
Non-Pooled Mortgage Loan Noteholder(s) secured by the [insert name of
mortgaged property]"; provided, however, that if the related Mortgage is a
Designated MERS Mortgage, no UCC Financing Statement in favor of the
Trustee will be required to be prepared or delivered and instead, the
related Pooled Mortgage Loan Seller shall take all actions as are necessary
to cause the Trustee to be shown as, and the Trustee shall take all actions
necessary to confirm (and shall place into the Mortgage File such
confirmation in writing from MERS) that it is shown as, for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS, the sole owner of any related UCC Financing Statements
on record with the applicable filing office;
(x) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the original
or a copy of the Ground Lease relating to such Mortgage Loan, together with
a notice to the related ground lessor of the transfer of the Mortgage Loan
to the Trust or the Trustee on its behalf;
(xi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, any original documents not otherwise described in the preceding
clauses of this definition relating to, evidencing or constituting
Additional Collateral (except that, in the case of such documents, if any,
that are in the form of a Letter of Credit, either (x) the "Mortgage File"
shall initially contain the original of such Letter of Credit (and a copy
of such Letter of Credit shall initially be delivered to the applicable
Master Servicer) and, thereafter, such original shall be delivered to the
applicable Master Servicer (with a copy of such Letter of Credit to be
maintained by the Trustee) with reasonable promptness following request in
connection with the applicable Master Servicer's performance of its duties
hereunder, or (y) the "Mortgage File" shall initially contain a copy of
such Letter of Credit and the original of such Letter of Credit shall
initially be delivered to the applicable Master Servicer (or a Primary
Servicer on its behalf) and, thereafter, such original shall be maintained
by such Master Servicer (or a Primary Servicer on its behalf)) and, if
applicable, the originals or copies of any intervening assignments thereof;
(xii) an original or a copy of the loan agreement, if any,
related to such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of payment
under such Mortgage Loan, if any;
(xiv) an original or a copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental indemnity from
the related Borrower or other party, if any;
(xvi) an original or a copy of any intercreditor agreement or
similar agreement relating to such Mortgage Loan (including, in the case of
each Pooled Mortgage Loan that is included in a Mortgage Loan Group, the
related Mortgage Loan Group Intercreditor Agreement);
(xvii) an original or a copy of any management agreement with
respect to the related Mortgaged Property if the manager thereunder is not
an Affiliate of the Borrower and the initial Stated Principal Balance of
such Mortgage Loan is greater than $20,000,000;
(xviii) an original or a copy of any master operating lease with
respect to the related Mortgaged Property;
(xix) an original or a copy of any related Environmental
Insurance Policy;
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(xx) if the related Mortgaged Property is a hospitality property
that is subject to a franchise or similar arrangement, (a) an original or a
copy of any franchise or similar agreement and (b) either (i) a signed copy
of the comfort letter delivered by the franchisor or similar person for the
benefit of the holder of the Mortgage Loan in connection with the Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage Loan,
together with such instrument(s) of notice or transfer (if any) as are
necessary to transfer or assign to the Trust or the Trustee the benefits of
such comfort letter, or (ii) a copy of the comfort letter delivered by the
franchisor or similar person for the benefit of the holder of the Mortgage
Loan in connection with such origination or acquisition of the Mortgage
Loan, together with a signed copy or a fax copy of a new comfort letter (in
substantially the same form and substance as the comfort letter delivered
in connection with such origination or acquisition) by the franchisor or
similar person for the benefit of the Trust or the Trustee (and, if a fax
copy of a new comfort letter is delivered, then the original copy shall be
included in the "Mortgage File" promptly following receipt thereof by the
related Pooled Mortgage Loan Seller); and
(xxi) a checklist (a "Mortgage File Checklist") of the applicable
documents described above and delivered in connection with the origination
of such Mortgage Loan (which checklist may be in a reasonable form selected
by the related Pooled Mortgage Loan Seller);
provided, however, that (A) whenever the term "Mortgage File" is used to refer
to documents actually received by the Trustee or by a Custodian on its behalf,
such term shall not be deemed to include such documents required to be included
therein unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (vi), (vii) and (ix) through (xx) of this definition, shall
be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence (and the Trustee
or such Custodian, as the case may be, shall be deemed to have actual knowledge
of the existence of any document listed on the related Mortgage File Checklist);
(B) the "Mortgage File" for each Pooled Mortgage Loan that is included in a
Serviced Mortgage Loan Group shall include a photocopy of the executed Mortgage
Note for each Serviced Non-Pooled Mortgage Loan that is included in such
Serviced Mortgage Loan Group; (C) all the documents in the "Mortgage File" for
each Pooled Mortgage Loan included in a Serviced Mortgage Loan Group (other than
the Mortgage Note for such Pooled Mortgage Loan and any allonges thereto) shall
be deemed to be contained in the "Mortgage File" for each Serviced Non-Pooled
Mortgage Loan that is included in such Serviced Mortgage Loan Group (without
additional copies) and references herein to the "Mortgage File" for each such
Serviced Non-Pooled Mortgage Loan shall be construed in accordance with this
statement; and (D) the "Mortgage File" for a Non-Trust-Serviced Pooled Mortgage
Loan shall also include a copy of the related Non-Trust Servicing Agreement in
effect as of the Closing Date and photocopies of all transfer documents
comparable to those documents described in clauses (iv), (vi) and (ix)(B) of
this definition (originals of which were delivered to the applicable trustee
under the related Non-Trust Servicing Agreement).
"Mortgage File Checklist": As defined in clause (xxi) of the
definition of "Mortgage File".
"Mortgage Loan": Any Pooled Mortgage Loan or Non-Pooled Mortgage Loan.
As used herein, the term "Mortgage Loan" includes the related Mortgage Loan
Documents.
"Mortgage Loan Documents": With respect to any Mortgage Loan, the
documents included or required to be included, as the context may require, in
the related Mortgage File and Servicing File.
"Mortgage Loan Group": Each of the 0000 Xxxxxxxx Loan Group and the
Tuscany Plaza Loan Group, as applicable.
"Mortgage Loan Group Intercreditor Agreement": Each of the 0000
Xxxxxxxx Intercreditor Agreement and the Tuscany Plaza Intercreditor Agreement,
as applicable.
"Mortgage Note": The original executed promissory note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
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"Mortgage Pool": All of the Pooled Mortgage Loans and any successor
REO Pooled Mortgage Loans, collectively, as of any particular date of
determination.
"Mortgage Rate": With respect to each Mortgage Loan (and any successor
REO Mortgage Loan with respect thereto), the related annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such Mortgage
Loan from time to time in accordance with the related Mortgage Note and
applicable law, as such rate may be modified in accordance with Section 3.20
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the relevant
Non-Trust Master Servicer or the relevant Non-Trust Special Servicer in
accordance with the applicable Non-Trust Servicing Agreement) or in connection
with a bankruptcy, insolvency or similar proceeding involving the related
Borrower. In the case of each ARD Mortgage Loan, the related Mortgage Rate shall
increase in accordance with the related Mortgage Note if the particular loan is
not paid in full by its Anticipated Repayment Date. Notwithstanding any contrary
provision of the foregoing, in the case of each Closing Date Deposit Mortgage
Loan, the "Mortgage Rate" for the month in which the Closing Date occurs shall
be deemed to be equal to the Mortgage Rate that is scheduled to be in effect on
the first day of the first calendar month that follows the Closing Date (and
such Mortgage Rate that is scheduled to be in effect on the first day of the
first calendar month that follows the Closing Date shall be set forth on the
Pooled Mortgage Loan Schedule as if it were the applicable rate that is in
effect on the Closing Date).
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if and
when the context may require, "Mortgaged Property" shall mean, collectively, all
the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee": The holder of legal title to any Mortgage Loan, together
with any third parties through which such holder takes actions with respect to
such Mortgage Loan.
"Nationwide": Nationwide Life Insurance Company, or its successor in
interest.
"Nationwide Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original Nationwide Pooled Mortgage Loan or a Replacement Pooled
Mortgage Loan that was delivered under the Nationwide Pooled Mortgage Loan
Purchase Agreement in substitution for an Original Nationwide Pooled Mortgage
Loan.
"Nationwide Pooled Mortgage Loan Purchase Agreement": That certain
Pooled Mortgage Loan Purchase Agreement dated as of June 8, 2006, between
Nationwide as seller and the Depositor as purchaser.
"Nationwide Primary Servicing Agreement": That certain primary
servicing agreement dated as of June 1, 2006, between WFB, as the applicable
Master Servicer for the Nationwide Pooled Mortgage Loans, and Nationwide, as
primary servicer, relating to the primary servicing and administration of the
Nationwide Pooled Mortgage Loans.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments (and prepayment resulting from the receipt of Insurance
Proceeds or Condemnation Proceeds) on the Pooled Mortgage Loans during the
related Collection Period, exceeds (b) the aggregate amount of the Compensating
Interest Payments remitted by the Master Servicers pursuant to Section 3.19(c)
on the Master Servicer Remittance Date related to such Distribution Date.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
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"Net Default Charges": With respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan, the Default Charges referred to in clause
third of Section 3.26(a), which are payable to the applicable Master Servicer as
Additional Master Servicing Compensation or the applicable Special Servicer as
Additional Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account for
any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account (exclusive, in the case of a Servicing Account, a
Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Borrower in accordance with the related
Mortgage Loan Documents and applicable law), exceeds the aggregate of all losses
and costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06 (exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit Account, of
any portion of such losses that were incurred in connection with investments
made for the benefit of a Borrower).
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Investment Account for the benefit of a Master Servicer, a
Special Servicer or the Certificate Administrator, as applicable, in accordance
with Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such losses that
were incurred in connection with investments made for the benefit of a Borrower,
and other than losses of what would otherwise have constituted interest or other
income earned on such funds), exceeds the aggregate of all interest and other
income realized during such Collection Period in connection with the investment
of such funds for the benefit of such Master Servicer, such Special Servicer or
the Certificate Administrator, as applicable, in accordance with Section 3.06;
provided that, in the case of any Investment Account and any particular
investment of funds in such Investment Account, Net Investment Loss shall not
include any loss with respect to such investment which is incurred solely as a
result of the insolvency of the federal or state chartered depositary
institution or trust company at which such 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 same Person as the Person that made the
relevant investment.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds Received by the Trust with respect to any particular Specially Serviced
Mortgage Loan or Administered REO Property, over the amount of all Liquidation
Expenses incurred with respect thereto and all related Servicing Advances
reimbursable therefrom.
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage Loan (or
any successor REO Pooled Mortgage Loan with respect thereto), the rate per annum
equal to (a) the related Mortgage Rate minus (b) the related Administrative Fee
Rate and, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, the related Post-ARD Additional Interest Rate, and (ii) the Serviced
Non-Pooled Mortgage Loans (or any successor REO Mortgage Loan with respect
thereto), the rate per annum equal to (a) the related Mortgage Rate minus (b)
the related Master Servicing Fee Rate.
"New Lease": Any lease of an Administered REO Property entered into at
the direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee if the Special Servicer has the power to
renegotiate the terms of such lease.
"Non-Pooled Mortgage Loan": Any mortgage loans (if any), other than a
Pooled Mortgage Loan, that is part of a split loan structure that includes a
Pooled Mortgage Loan as identified in the Preliminary Statement hereto (whether
or not such split loan structure is principally serviced and administered under
this Agreement). Only the 0000 Xxxxxxxx Non-Pooled Subordinate Loan and the
Tuscany Plaza Non-Pooled Subordinate Loan constitute Non-Pooled Mortgage Loans
under this Agreement.
"Non-Pooled Noteholder": The holder of any Non-Pooled Mortgage Loan.
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"Non-Pooled Pari Passu Companion Loan": Any Non-Pooled Mortgage Loan
that is secured by the same Mortgage encumbering the same Mortgaged Property as
the one encumbering a Pooled Mortgage Loan, is pari passu in right of payment
with such Pooled Mortgage Loan and is part of a Serviced Loan Group. The Non
Pooled Pari Passu Companion Loans are not "Pooled Mortgage Loans" or part of the
Trust Fund, any REMIC Pool or either Grantor Trust Pool. For the avoidance of
doubt, no Mortgage Loan constitutes a Non-Pooled Pari Passu Companion Loan under
this Agreement.
"Non-Pooled Pari Passu Companion Loan Securities": For so long as any
Non-Pooled Pari Passu Companion Loan is serviced and administered under this
Agreement, any class of securities backed by such Non-Pooled Pari Passu
Companion Loan.
"Non-Pooled Subordinate Loan": Either of the 0000 Xxxxxxxx Non-Pooled
Subordinate Loan or the Tuscany Plaza Non-Pooled Subordinate Loan, as
applicable.
"Non-Pooled Subordinate Noteholder: Either of the 0000 Xxxxxxxx
Non-Pooled Subordinate Noteholder or the Tuscany Plaza Non-Pooled Subordinate
Noteholder, as applicable.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance (including
any Unliquidated Advance that constitutes a Nonrecoverable P&I Advance) or
Nonrecoverable Servicing Advance (including any Unliquidated Advance that
constitutes a Nonrecoverable Servicing Advance).
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance, or any Unliquidated Advance in respect of a prior P&I Advance,
previously made and any P&I Advance contemplated to be made in respect of any
Pooled Mortgage Loan or related successor REO Pooled Mortgage Loan that, as
determined by the applicable Master Servicer or, if applicable, by the Trustee,
or by the applicable Special Servicer pursuant to the second paragraph of
Section 4.03(c), in its reasonable, good faith judgment, will not be ultimately
recoverable, or in fact was not ultimately recovered, from late payments,
Default Charges, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
or any other recovery on or in respect of such Mortgage Loan or the related REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors). In the case of a Cross-Collateralized Mortgage
Loan, such recoverability determination shall take into account the
cross-collateralization of the related Cross-Collateralized Group. In connection
with each Pooled Mortgage Loan that is part of a Mortgage Loan Group that
includes a Non-Pooled Pari Passu Companion Loan, if the applicable Master
Servicer receives a written notice described in clause (i) of the third
paragraph of Section 4.03(c) to the effect that the master servicer or other
comparable party responsible for debt service advances with respect to such
Non-Pooled Pari Passu Companion Loan under the related pooling and servicing
agreement (pursuant to which securities were issued that are rated by at least
one national statistical rating organization) has determined, pursuant to such
agreement, that any debt service advance made or to be made with respect to such
Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with
respect thereto) would not ultimately be recoverable out of collections on such
Mortgage Loan (or such REO mortgage loan), then, for purposes of any xxxxxxxxxxx
X&X Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage
Loan) under this Agreement, the applicable Master Servicer (or the Trustee, or
Special Servicer, as applicable) shall be entitled to rely on such
determination, notwithstanding the absence of any determination (as otherwise
contemplated above and by Section 4.03(c)) by any party hereto that any prior
P&I Advance or any xxxxxxxxxxx X&X Advance on such Pooled Mortgage Loan
constitutes a Nonrecoverable Advance. Notwithstanding the preceding sentence,
each party to this Agreement with the discretion to determine that a P&I Advance
constitutes a Nonrecoverable Advance (as otherwise contemplated above and by
Section 4.03(c)) shall continue to have such discretion.
"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance, or any Unliquidated Advance in respect of a prior Servicing
Advance, previously made, and any Servicing Advance proposed to be made, in
respect of any Mortgage Loan or REO Property that, as determined by the
applicable Master Servicer or, if applicable or the Trustee, in its reasonable,
good faith judgment, will not be ultimately recoverable, or in fact was not
ultimately recovered, from late
-42-
payments, Default Charges, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or any other recovery on or in respect of such Mortgage
Loan or such REO Property (without giving effect to potential recoveries on
deficiency judgments or recoveries from guarantors). In the case of a
Cross-Collateralized Mortgage Loan, such recoverability determination shall take
into account the cross-collateralization of the related Cross-Collateralized
Group.
"Non-Registered Certificate": Any Certificate that has not been
subject to registration under the Securities Act. As of the Closing Date, 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 and Class V
Certificates are Non-Registered Certificates.
"Non-Trust Master Servicer": With respect to the Non-Trust-Serviced
Pooled Mortgage Loan, the master servicer under the Non-Trust Servicing
Agreement.
"Non-Trust-Serviced Mortgage Loan Group": Any group of mortgage loans
that is primarily serviced and administered under the pooling and servicing
agreement for another commercial mortgage securitization trust. For the
avoidance of doubt, no group of mortgage loans constitutes a Non-Trust-Serviced
Mortgage Loan Group under this Agreement.
"Non-Trust-Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan
that is part of a Non-Trust-Serviced Mortgage Loan Group. For the avoidance of
doubt, no Pooled Mortgage Loan constitutes a Non-Trust-Serviced Pooled Mortgage
Loan under this Agreement.
"Non-Trust-Servicing Agreement": With respect to the
Non-Trust-Serviced Pooled Mortgage Loan and the Non-Trust-Serviced Mortgage Loan
Group of which it is a part, the separate agreement pursuant to which the
Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled Pari Passu
Companion Loan are (or, if applicable, any related REO Property is) to be
principally serviced and administered.
"Non-Trust Special Servicer": With respect to the Non Trust Serviced
Pooled Mortgage Loan, the special servicer under the Non Trust Servicing
Agreement.
"Non-United States Tax Person": Any Person other than a United States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of a Master Servicer or Special Servicer or a Responsible Officer of the
Certificate Administrator or the Trustee, as the case may be, or, with respect
to any other Person, a certificate signed by any of the Chairman of the Board,
the Vice Chairman of the Board, the President, any Vice President, Director or
Managing Director, an Assistant Vice President or any other authorized officer
(however denominated) or another officer customarily performing functions
similar to those performed by any of the above designated officers or, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Opinion of Counsel": A written opinion of counsel (who must, in the
case of any such opinion relating to the taxation of the Trust Fund or any
portion thereof, the status of any REMIC Pool as a REMIC, the status of any
Grantor Trust Pool as a Grantor Trust for taxation purposes or a resignation
under Section 6.04, be Independent counsel, but who otherwise may be salaried
counsel for the Depositor, the Certificate Administrator, the Trustee, the Tax
Administrator, either Master Servicer or any Special Servicer), which written
opinion is acceptable and delivered to the addressee(s) thereof and which
opinion of counsel, except as provided herein, shall not be at the expense of
the Certificate Administrator, the Trustee or the Trust Fund.
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
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"Original BSCMI Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-B.
"Original Nationwide Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule I-F.
"Original PCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-D.
"Original PCFII Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-E.
"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"Original Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A, Schedule I-B,
Schedule I-C, Schedule I-D, Schedule I-E and Schedule I-F.
"Original WFB Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-C.
"Other Crossed Loans": As defined in Section 2.03(b).
"Other Securitization": As defined in Section 11.03.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": In the case of 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": With respect to any Pooled Mortgage Loan or REO Pooled
Mortgage Loan (including a Non-Trust-Serviced Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan thereto), any advance made by the applicable
Master Servicer or the Trustee pursuant to Section 4.03.
"P&I Advance Date": The Business Day preceding each Distribution Date.
"PAR": Prudential Asset Resources, Inc. or its successor in interest.
"Pass-Through Rate": The per annum rate at which interest accrues in
respect of any Class of REMIC III Certificates during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.16(f).
"Past Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable, in respect
of any particular Pooled Mortgage Loan, the status attributable to that Mortgage
Loan by reason of, if applicable, the fact that such Monthly Payment or Assumed
Monthly Payment remains unpaid past its Due Date and past any applicable grace
period for such Monthly Payment or Assumed Monthly Payment.
"PCAOB": The Public Company Accounting Oversight Board.
"PCF": Principal Commercial Funding, LLC, or its successor in
interest.
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"PCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either an
Original PCF Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that was
delivered under the PCF Pooled Mortgage Loan Purchase Agreement in substitution
for an Original PCF Pooled Mortgage Loan.
"PCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of June 8, 2006, between PCF as seller
and the Depositor as purchaser.
"PCFII": Principal Commercial Funding II, LLC, or its successor in
interest.
"PCFII Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an Original PCFII Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan
that was delivered under the PCFII Pooled Mortgage Loan Purchase Agreement in
substitution for an Original PCFII Pooled Mortgage Loan.
"PCFII Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of June 8, 2006, between PCFII as
seller and the Depositor as purchaser.
"Percentage Interest": With respect to (a) any Interest Only
Certificate or Principal Balance Certificate, the portion of the relevant Class
evidenced by such Certificate, expressed as a percentage, the numerator of which
is the Certificate Principal Balance or Certificate Notional Amount, as the case
may be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the initial Class Principal Balance or
initial Class Notional Amount, as the case may be, of the relevant Class as of
the Closing Date; and (b) any Class R or Class V Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
specified on the face of such Certificate.
"Performance Certification": As defined in Section 11.08.
"Performing Party": As defined in Section 11.14.
"Performing Serviced Mortgage Loan": Any Serviced Mortgage Loan that
is not a Specially Serviced Mortgage Loan.
"Permitted Investments": Any one or more of the following obligations
or securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that each such
obligation is backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that
do not relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency, as confirmed
in writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-
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Pooled Pari Passu Companion Loan Securities rated by such
applicable Rating Agency), as applicable, or (z) in the case of
an investment being made with funds that relate solely to a
Serviced Non-Pooled Mortgage Loan and do not relate to one or
more Pooled Mortgage Loans, each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (or, in
the case of any such Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any class of
such Non-Pooled Pari Passu Companion Loan Securities rated by
such applicable Rating Agency as confirmed in writing to the
Trustee by such Rating Agency), as applicable;
(iii) federal funds, unsecured uncertificated certificates of deposit,
time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any
state thereof, provided that the short-term unsecured debt
obligations of such bank or trust company are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that
do not relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency, as confirmed
in writing to the Trustee by such Rating Agency), (y) in the case
of an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, or (z) in
the case of an investment being made with funds that relate
solely to a Serviced Non-Pooled Mortgage Loan and do not relate
to one or more Pooled Mortgage Loans, each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (or, in the case of any such Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable Rating Agency as confirmed in
writing to the Trustee by such Rating Agency), as applicable;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof (or of any corporation
not so incorporated, provided that the commercial paper is United
States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction), provided that such commercial paper is rated in
the highest short-term debt rating category of: (x) in the case
of an investment being made with funds that do not relate in
whole or in part to any Serviced Non-Pooled Mortgage Loan, each
Rating Agency for the Rated Certificates (or, in the case of any
such Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency, as confirmed in writing
to the Trustee by such Rating Agency), (y) in the case of an
investment being made with funds that relate in whole or in part
to any Serviced Non-Pooled Mortgage Loan and also relate to one
or more Pooled Mortgage Loans, each Rating Agency for the Rated
Certificates and each applicable Rating Agency for the related
Non-Pooled Pari Passu Companion Loan Securities (as evidenced by
a written confirmation to the Trustee from each Rating Agency
that such investment would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu
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Companion Loan Securities rated by such applicable Rating
Agency), as applicable, or (z) in the case of an investment being
made with funds that relate solely to a Serviced Non-Pooled
Mortgage Loan and do not relate to one or more Pooled Mortgage
Loans, each applicable Rating Agency for the related Non-Pooled
Pari Passu Companion Loan Securities (or, in the case of any such
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating
Agency as confirmed in writing to the Trustee by such Rating
Agency), as applicable;
(v) units of money market funds (including those managed or advised
by the Certificate Administrator or its Affiliates) which
maintain a constant net asset value, provided that such units of
money market funds are rated in the highest applicable rating
category of: (x) in the case of an investment being made with
funds that do not relate in whole or in part to any Serviced
Non-Pooled Mortgage Loan, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency, as confirmed in writing to the Trustee by such Rating
Agency), (y) in the case of an investment being made with funds
that relate in whole or in part to any Serviced Non-Pooled
Mortgage Loan and also relate to one or more Pooled Mortgage
Loans, each Rating Agency for the Rated Certificates and each
applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities (as evidenced by a written confirmation
to the Trustee from each Rating Agency that such investment would
not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency and also from each applicable Rating Agency that such
investment would not, in and of itself, result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating
Agency), as applicable, or (z) in the case of an investment being
made with funds that relate solely to a Serviced Non-Pooled
Mortgage Loan and do not relate to one or more Pooled Mortgage
Loans, each applicable Rating Agency for the related Non-Pooled
Pari Passu Companion Loan Securities (or, in the case of any such
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating
Agency as confirmed in writing to the Trustee by such Rating
Agency), as applicable; or
(vi) any other obligation or security that is acceptable to: (x) in
the case of an investment being made with funds that do not
relate in whole or in part to any Serviced Non-Pooled Mortgage
Loan, each Rating Agency for the Rated Certificates (or, in the
case of any such Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency, as confirmed in
writing to the Trustee by such Rating Agency), (y) in the case of
an investment being made with funds that relate in whole or in
part to any Serviced Non-Pooled Mortgage Loan and also relate to
one or more Pooled Mortgage Loans, each Rating Agency for the
Rated Certificates and each applicable Rating Agency for the
related Non-Pooled Pari Passu Companion Loan Securities (as
evidenced by a written confirmation to the Trustee from each
Rating Agency that such investment would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each
applicable Rating Agency that such investment would not, in and
of itself, result in an Adverse Rating Event with respect to any
class of such Non-Pooled Pari Passu Companion Loan Securities
rated by such applicable Rating Agency), as applicable, or (z) in
the case of an investment being made with funds that relate
solely to a Serviced Non-Pooled Mortgage Loan and do not relate
to one or more Pooled Mortgage Loans, each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan
Securities (or, in the case of any such Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect
to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such applicable
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Rating Agency as confirmed in writing to the Trustee by such
Rating Agency), as applicable;
provided that each investment described hereunder shall not (A) evidence either
the right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) be purchased at a price greater than par if such
investment may be prepaid or called at a price less than its purchase price
prior to stated maturity, (C) be sold prior to stated maturity if such sale
would result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code or (D) have an "r" highlighter or
other comparable qualifier attached to its rating; and provided, further, that
each investment described hereunder must have (X) a predetermined fixed amount
of principal due at maturity (that cannot vary or change), (Y) an original
maturity of not more than 365 days and a remaining maturity of not more than 30
days and (Z) except in the case of a Permitted Investment described in clause
(v) of this definition, a fixed interest rate or an interest rate that is tied
to a single interest rate index plus a single fixed spread and moves
proportionately with that index; and provided, further, that each investment
described hereunder must be a "cash flow investment" (within the meaning of the
REMIC Provisions).
"Permitted Transferee": Any Transferee of a Class R Certificate other
than (a) a Disqualified Organization, (b) a Disqualified Non-United States Tax
Person, (c) a Disqualified Partnership, (d) a foreign permanent establishment or
fixed base (within the meaning of any applicable income tax treaty between the
United States and any foreign jurisdiction) of a United States Tax Person or (e)
any other Person as to whom, as determined by the Tax Administrator (based upon
an Opinion of Counsel, obtained at the request of the Tax Administrator at the
expense of such Person or the Person seeking to Transfer a Class R Certificate,
supporting such determination), the Transfer of a Class R Certificate may cause
any REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PGI": Principal Global Investors, LLC, or its successor in interest.
"PGI Primary Servicing Agreement": That certain primary servicing
agreement dated as of June 1, 2006, between WFB, as the applicable Master
Servicer for the PCF Pooled Mortgage Loans and the PCFII Pooled Mortgage Loans,
and Principal Global Investors, LLC, as primary servicer, relating to the
primary servicing and administration of the PCF Pooled Mortgage Loans and PCFII
Pooled Mortgage Loans.
"Phase I Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, the American Society for Testing and
Materials, plus a radon and asbestos inspection.
"Plan": Any of those employee benefit plans and other benefit plans
and arrangements, 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 insurance company general
accounts, that are subject to ERISA or Section 4975 of the Code.
"PMCF": Prudential Mortgage Capital Funding, LLC, or its successor in
interest.
"PMCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an Original PMCF Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that
was delivered under the PMCF Pooled Mortgage Loan Purchase Agreement in
substitution for an Original PMCF Pooled Mortgage Loan.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of June 8, 2006, between PMCF as
seller and the Depositor as purchaser.
"Pooled Mortgage Loan": Each of the Original Pooled Mortgage Loans and
Replacement Pooled Mortgage Loans that are from time to time held in the Trust
Fund, including any such mortgage loan that has been wholly or partially
defeased. As used herein, the term "Pooled Mortgage Loan" includes the related
Mortgage Loan Documents.
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"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI Pooled
Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan Purchase
Agreement, the PMCF Pooled Mortgage Loan Purchase Agreement, the PCF Pooled
Mortgage Loan Purchase Agreement, the PCFII Pooled Mortgage Loan Purchase
Agreement and the Nationwide Pooled Mortgage Loan Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the five schedules of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule I-B, Schedule
I-C, Schedule I-D, Schedule I-E and Schedule I-F, respectively, as any such
schedule may be amended from time to time in accordance with this Agreement.
Such schedules shall set forth the following information with respect to each
Pooled Mortgage Loan:
(i) the loan number assigned to the Pooled Mortgage Loan on the books
and records of the related Pooled Mortgage Loan Seller as of the
Closing Date and the identification number assigned to such
Pooled Mortgage Loan in the Prospectus Supplement;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Pooled Mortgage Loan
currently requires only payments of interest but begins to
amortize prior to Stated Maturity Date, on the first Due Date
after amortization begins);
(v) the Mortgage Rate as of the Closing Date and the Interest Accrual
Basis;
(vi) the Stated Maturity Date and the original and remaining term to
Stated Maturity Date (or, in the case of a Pooled Mortgage Loan
that is an ARD Mortgage Loan, the Anticipated Repayment Date and
the original and remaining term to the Anticipated Repayment
Date);
(vii) in the case of a Pooled Mortgage Loan that is a Balloon Mortgage
Loan or an ARD Mortgage Loan, the original and remaining
amortization term;
(viii) whether such Pooled Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, an identification of the Pooled
Mortgage Loans with which such Pooled Mortgage Loan is
cross-collateralized;
(ix) whether such Pooled Mortgage Loan provides for defeasance and if
so, the period during which defeasance may occur;
(x) whether such Pooled Mortgage Loan is secured by a fee simple
interest in the related Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the related
Mortgaged Property; or solely by a leasehold interest in the
related Mortgaged Property;
(xi) the name of the related Pooled Mortgage Loan Seller;
(xii) the Administrative Fee Rate;
(xiii) the Due Date;
(xiv) the number of grace days before such Pooled Mortgage Loan
requires a late payment charge in connection with a delinquent
Monthly Payment;
(xv) whether there exists (and, if so, the amount of) any letter of
credit that constitutes Additional
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Collateral;
(xvi) whether repayment of such Pooled Mortgage Loan is guaranteed by
a guarantor;
(xvii) the initial Master Servicer and the Master Servicing Fee Rate
for such Pooled Mortgage Loan; and
(xviii) the applicable Loan Group to which such Pooled Mortgage Loan
belongs.
"Pooled Mortgage Loan Sellers": Collectively, BSCMI, Nationwide, PCF,
PCFII, PMCF and WFB.
"Post-ARD Additional Interest": With respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Mortgage Loan at the Post-ARD Additional Interest Rate (the
payment of which interest shall, under the terms of such ARD Mortgage Loan, be
deferred until the principal balance of such ARD Mortgage Loan and all other
interest thereon has been paid in full), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate": With respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such ARD Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Pooled
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the Certificates for federal income tax purposes, the assumptions that each
Pooled Mortgage Loan that is an ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Pooled Mortgage Loan is otherwise
voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Pooled Mortgage Loan
(including a Non-Trust-Serviced Pooled Mortgage Loan) that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) after the Due Date for such Pooled Mortgage Loan
in any Collection Period, any payment of interest (net of related Master
Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan,
the rate per annum at which the master or similar servicing and administrative
fees payable therefrom under the related Non-Trust Servicing Agreement accrue as
set forth in the definition of "Administrative Fee Rate") and, in any case,
further net of any portion of such interest that represents Default Charges or
Post-ARD Additional Interest) actually Received by the Trust and collected from
the related Borrower or out of such Insurance Proceeds or Condemnation Proceeds,
as the case may be, and intended to cover the period from and after such Due
Date to, but not including, the date of prepayment (exclusive, for the avoidance
of doubt, of any related Prepayment Premium or Yield Maintenance Charge that may
have been collected).
"Prepayment Interest Shortfall": With respect to any Pooled Mortgage
Loan (including a Non-Trust-Serviced Pooled Mortgage Loan) that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) prior to the Due Date for such Pooled Mortgage
Loan in any Collection Period the amount of interest, to the extent not
collected from the related Borrower or otherwise (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
not Received by the Trust, that would have accrued at a rate per annum equal to
the related Mortgage Rate (net of the Master Servicing Fee Rate (and, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, the rate per annum at which
the master or similar servicing and administrative fees payable therefrom under
the related Non-Trust Servicing Agreement accrue as set forth in the definition
of "Administrative Fee Rate") and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, the related Post-ARD Additional Interest Rate) on
the amount of such Principal Prepayment (or other early recovery of principal)
during the period from the date to which interest thereon was paid by the
related Borrower to, but not including, such Due Date.
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"Prepayment Premium": With respect to any Mortgage Loan, any premium,
fee or other additional amount (other than a Yield Maintenance Charge) paid or
payable, as the context requires, by a Borrower in connection with a Principal
Prepayment on, or other early collection of principal of, such Mortgage Loan or
any successor REO Mortgage Loan with respect thereto (including any payoff of a
Mortgage Loan by a mezzanine lender on behalf of the subject Borrower if and as
set forth in the related intercreditor agreement).
"Primary Collateral": With respect to any Cross-Collateralized
Mortgage Loan, that portion of the Mortgaged Property designated as directly
securing such Cross-Collateralized Mortgage Loan and excluding any Mortgaged
Property as to which the related lien may only be foreclosed upon by exercise of
the cross-collateralization provisions of such Cross-Collateralized Mortgaged
Loan.
"Primary Servicer": Nationwide or any successor thereto or Principal
Global Investors, LLC or any successor thereto, as applicable, appointed as
provided in the Nationwide Primary Servicing Agreement or PGI Primary Servicing
Agreement, respectively.
"Primary Servicing Agreement": Each of the Nationwide Primary
Servicing Agreement and the PGI Primary Servicing Agreement, as applicable.
"Primary Servicing Fee": With respect to a Primary Servicer, the
primary servicing fee that is payable to such Primary Servicer under the terms
of the related Primary Servicing Agreement.
"Primary Servicing Office": The office of a Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"Principal Balance Certificate": Any of the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, 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": With respect to any Distribution Date
other than the Final Distribution Date, an amount (which shall in no event be
less than zero) equal to the excess, if any, of:
(I) the sum of:
(A) the aggregate (without duplication) of the following (such
aggregate of the following amounts described below in this clause (A), the
"Unadjusted Principal Distribution Amount" for such Distribution Date):
(i) all payments of principal (including Principal
Prepayments), including any such payments on Corrected Mortgage Loans,
Received by the Trust with respect to the Pooled Mortgage Loans during
the related Collection Period, in each case exclusive of any portion
of the particular payment that represents a Late Collection of
principal for which a P&I Advance (including any Unliquidated Advance
in respect of a prior P&I Advance) was previously made under this
Agreement for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off
Date or on a Due Date occurring subsequent to the calendar month in
which such Distribution Date occurs,
(ii) the aggregate of the principal portions of all Monthly
Payments due in respect of the Pooled Mortgage Loans for their
respective Due Dates occurring in the month in which such Distribution
Date occurs, that were Received by the Trust (other than as part of a
Principal Prepayment) prior to the related Collection Period (or, in
the case of any Pooled Mortgage Loan for which the Due Date occurs on
a day other than the first day of each month, that were Received by
the Trust in the
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calendar month prior to the calendar month in which the related
Distribution Date occurs but are due during the calendar month in
which the related Distribution Date occurs),
(iii) the aggregate of all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds Received by the Trust
with respect to any Pooled Mortgage Loans during the related
Collection Period that were identified and applied by the applicable
Master Servicer as recoveries of principal (whether as Principal
Prepayments or otherwise) of such Pooled Mortgage Loans in accordance
with Section 1.03, in each case net of any portion of such proceeds
that represents a Late Collection of principal due on or before the
Cut-off Date or for which a P&I Advance (including an Unliquidated
Advance in respect of a prior P&I Advance) was previously made under
this Agreement for a prior Distribution Date,
(iv) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received by the Trust
with respect to any REO Properties during the related Collection
Period that were identified and applied by the applicable Master
Servicer as recoveries of principal (whether as Principal Prepayments
or otherwise) of the related REO Pooled Mortgage Loans in accordance
with Section 1.03, in each case net of any portion of such proceeds
and/or revenues that represents a Late Collection of principal due on
or before the Cut-off Date or for which a P&I Advance (including an
Unliquidated Advance in respect of a prior P&I Advance) was previously
made under this Agreement for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances
made under this Agreement in respect of the Pooled Mortgage Loans and
any REO Pooled Mortgage Loans with respect to such Distribution Date;
(B) the aggregate amount of any collections received on or in
respect of the Pooled 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 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)(B) below with respect to such Distribution Date; and
(C) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection Period
that, in each case, is identified and applied by the applicable Master
Servicer (in accordance with Section 1.03) as a recovery of an amount
previously determined (in a Collection Period for a prior Distribution
Date) to have been a Nonrecoverable Advance and for which a deduction was
made under clause (II)(C) below with respect to a prior Distribution Date;
less
(II) the sum of:
(A) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Pooled Mortgage Loan
or REO Property, and/or any Pooled Mortgage Loan or REO Property is
otherwise liquidated (including by means of a Final Recovery Determination
or the receipt of a full, partial or discounted payoff), during the related
Collection Period, an amount equal to any Workout Fees or Liquidation Fees
with respect to each such Pooled Mortgage Loan or REO Property, as the case
may be, that were paid hereunder from a source other than related Default
Charges during the related Collection Period;
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(B) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that were reimbursed or paid during the
related Collection Period to one or more of the Master Servicers, the
Special Servicer and the Trustee from principal advances and collections on
the Mortgage Pool pursuant to subsection (iii) of Section 3.05(a)(II); and
(C) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that were reimbursed or paid during the related
Collection Period to one or more of the Master Servicers, the Special
Servicer and the Trustee during the related Collection Period from
principal advances and collections on the Mortgage Pool pursuant to
subsection (iv) of Section 3.05(a)(II).
provided, however, that the foregoing provisions of this definition shall be
construed in a manner that is consistent with Section 3.02(d).
For purposes of determining the portion of the Principal Distribution
Amount that is attributable to Loan Group 1 or Loan Group 2 in connection with
any Distribution Date, any reduction in the Principal Distribution Amount that
is described in any of clauses (II)(A), (B) and/or (C) above that arises from a
particular Pooled Mortgage Loan will be applied, first as a reduction of the
portion of the Principal Distribution Amount that is otherwise attributable to
the Loan Group that includes such Pooled Mortgage Loan (until such portion, net
of all subtractions pursuant to clauses (II)(A), (B) and (C) above arising from
Pooled Mortgage Loans in such Loan Group, is equal to zero), and, then, as a
reduction of the portion of the Principal Distribution Amount that is otherwise
attributable to the other Loan Group (until such portion, net of all such
subtractions pursuant to clauses (II)(A), (B) and (C) above arising from Pooled
Mortgage Loans in such Loan Group and all subtractions pursuant to this clause,
is equal to zero); and any increase in the Principal Distribution Amount that is
described in either of clauses (II)(B) and/or (C) above that arises from a
recovery of a previously reimbursed amount related to a particular Pooled
Mortgage Loan will be applied, first, if the attributable portion of the
Principal Distribution Amount for the unrelated Loan Group (that is, the Loan
Group that does not include such Pooled Mortgage Loan) was previously reduced on
account of such particular Pooled Mortgage Loan or any other Pooled Mortgage
Loan in the same Loan Group as such particular Pooled Mortgage Loan, as an
increase in the portion of the Principal Distribution Amount that is otherwise
attributable to the Loan Group that does not include such Pooled Mortgage Loan
(until the cumulative amount of such increases under this clause is equal to the
cumulative reductions to the attributable portion of the Principal Distribution
Amount for that Loan Group on account of Pooled Mortgage Loans not included in
such Loan Group), and, then, as an increase in the portion of the Principal
Distribution Amount that is otherwise attributable to the Loan Group that
includes such Pooled Mortgage Loan.
With respect to the Final Distribution Date, the "Principal
Distribution Amount" shall equal the aggregate Stated Principal Balance of the
entire Mortgage Pool outstanding immediately prior to the Final Distribution
Date.
In no event shall any portion of any Excess Liquidation Proceeds
constitute a portion of the Principal Distribution Amount for any Distribution
Date.
"Principal Prepayment": Any payment of principal made by the Borrower
on a Mortgage Loan which is received in advance of its scheduled Due Date and
that is not accompanied by an amount of interest (without regard to any
Prepayment Premium, Yield Maintenance Charge and/or Post-ARD Additional Interest
that may have been collected) representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
"Private Placement Memorandum": The final Private Placement Memorandum
dated June 8, 2006, relating to certain classes of the Non-Registered
Certificates delivered by the Depositor to Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated as of the Closing Date.
"Privileged Person": Any of the following: a party to this Agreement,
an Underwriter, a Pooled Mortgage Loan Seller, the Controlling Class
Representative, a Rating Agency, a designee of the Depositor, a
Certificateholder and any Person who certifies to the Certificate Administrator
in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as applicable (which
form shall also be located on, and may be submitted electronically via, the
Certificate Administrator's
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internet website), that such Person is either a Certificate Owner or a
prospective purchaser of a Certificate or any interest therein.
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated June
8, 2006, relating to the Registered Certificates, that is a supplement to the
Base Prospectus.
"PTCE": Prohibited Transaction Class Exemption.
"PTE": Prohibited Transaction Exemption.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Pooled Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Pooled Mortgage Loan (or the related REO Pooled Mortgage Loan)
as of the date of purchase, (b) all accrued and unpaid interest on such Pooled
Mortgage Loan (or the related REO Pooled Mortgage Loan) at the related Mortgage
Rate (in the case of a Non-Trust-Serviced Pooled Mortgage Loan, net of the rate
at which master or similar servicing and administrative fees payable under the
related Non-Trust Servicing Agreement accrue) to, but not including, the Due
Date occurring in the Collection Period (or, in the case of any Pooled Mortgage
Loan for which the Due Date occurs on a day other than the first day of each
month, the Due Date occurring in the month in which such Collection Period ends)
during which the applicable purchase or repurchase occurs (exclusive, however,
of any portion of such accrued but unpaid interest that represents Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, Additional Interest), (c) all related unreimbursed Servicing Advances
(together with Unliquidated Advances in respect of prior Servicing Advances) and
all related Servicing Advances (without duplication with Unliquidated Advances
described in the immediately preceding parenthetical clause) that were
previously reimbursed out of collections on other Pooled Mortgage Loans and/or
REO Properties relating to other Pooled Mortgage Loans, if any, (d) all accrued
and unpaid Advance Interest with respect to any related Advances, and (e) solely
in the case of a purchase, repurchase or substitution, as applicable, by a
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement or a purchase of the 0000 Xxxxxxxx Pooled Mortgage Loan by
the related Non-Pooled Subordinate Noteholder pursuant to the related Mortgage
Loan Group Intercreditor Agreement, (i) to the extent not otherwise included in
the amount described in clause (d) of this definition, any unpaid Special
Servicing Fees and other outstanding Additional Trust Fund Expenses with respect
to such Pooled Mortgage Loan (or REO Property) and (ii) to the extent not
otherwise included in the amount described in clause (c) or clause (e) of this
definition, any costs and expenses incurred by a Master Servicer, a Special
Servicer, the Trustee or an agent of any of them (on behalf of the Trust) in
enforcing the obligation, if any, of a Pooled Mortgage Loan Seller to repurchase
or replace such Mortgage Loan or REO Property.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage": A qualified mortgage within the meaning of
Section 860G(a)(3) of the Code.
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"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Pooled Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution: (i) has an
outstanding Stated Principal Balance, after application of all scheduled
payments of principal and interest due during or prior to the month of
substitution, not in excess of the Stated Principal Balance of the Defective
Pooled Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs; (ii) has a fixed Mortgage Rate that is not less than, and
not more than one percentage point in excess of, the Mortgage Rate of the
Defective Pooled Mortgage Loan; (iii) has the same monthly Due Date as, and a
grace period for delinquent Monthly Payments that is no longer than, the Due
Date and grace period, respectively, of the Defective Pooled Mortgage Loan; (iv)
accrues interest on the same Interest Accrual Basis as the Defective Pooled
Mortgage Loan; (v) has a remaining term to stated maturity not greater than, and
not more than one year less than, that of the Defective Pooled Mortgage Loan,
(vi) has a Stated Maturity Date not later than two years prior to the Rated
Final Distribution Date; (vii) has a then current loan-to-value ratio not higher
than, and a then current debt service coverage ratio not lower than, the
loan-to-value ratio and debt service coverage ratio, respectively, of the
Defective Pooled Mortgage Loan as of the Closing Date; (viii) has comparable
prepayment restrictions to those of the Defective Pooled Mortgage Loan; (ix)
will comply, as of the date of substitution, with all of the representations
relating to the Defective Pooled Mortgage Loan set forth in or made pursuant to
the related Pooled Mortgage Loan Purchase Agreement; (x) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; and (xi) constitutes a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code (as evidenced by an Opinion of
Counsel provided by the related Pooled Mortgage Loan Seller at its expense);
provided, however, that if more than one mortgage loan is to be substituted for
any Defective Pooled Mortgage Loan, then all such proposed Replacement Pooled
Mortgage Loans shall, in the aggregate, satisfy the requirement specified in
clause (i) of this definition and have a weighted average remaining term to
stated maturity that satisfies the condition described in clause (v) above and
each such proposed Replacement Pooled Mortgage Loan shall, individually, satisfy
each of the requirements specified in clauses (ii) through (iv) and clauses (vi)
through (xi) of this definition; and provided, further, that no mortgage loan
shall be substituted for a Defective Pooled Mortgage Loan unless (a) such
prospective Replacement Pooled Mortgage Loan shall be acceptable to the
Controlling Class Representative (or, if there is no Controlling Class
Representative then serving, to the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class), in its (or
their) sole discretion, (b) each Rating Agency for the Rated Certificates shall
have confirmed in writing to the Trustee that such substitution will not in and
of itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by the related Pooled
Mortgage Loan Seller effecting the substitution) and (c) the related Pooled
Mortgage Loan Seller (at its expense) has delivered or caused to have been
delivered to the Trustee an Opinion of Counsel to the effect that the
substitution of such mortgage loan would not result in an Adverse REMIC Event
with respect to any REMIC Pool. When a Qualifying Substitute Mortgage Loan is
substituted for a Defective Pooled Mortgage Loan, the applicable Pooled Mortgage
Loan Seller shall certify that the Mortgage Loan meets all of the requirements
of the above definition and shall send such certification to the Trustee.
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by a Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": With respect to each Class of Rated
Certificates, the Distribution Date in September 2038.
"Rating Agency": With respect to (i) any Class of Rated Certificates,
each of Xxxxx'x and S&P, and (ii) any provision of this Agreement relating to
any Serviced Non-Pooled Mortgage Loan in which any Non-Pooled Pari Passu
Companion Loan Securities evidence interests or by which they are otherwise
backed or secured, each rating agency then rating any related class of such
Non-Pooled Pari Passu Companion Loan Securities or its respective successors in
interest.
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"Realized Loss": With respect to:
(1) each Pooled Mortgage Loan as to which a Final Recovery
Determination has been made (or any related successor REO Pooled Mortgage
Loan as to which a Final Recovery Determination has been made as to the
related REO Property), and with respect to each Pooled Mortgage Loan that
is a Corrected Mortgage Loan on which all amounts have been fully paid
under the terms of such Corrected Mortgage Loan (as it may have been
modified), an amount (not less than zero) equal to the excess, if any, of
(a) the sum of (i) the unpaid principal balance of such Pooled Mortgage
Loan or REO Pooled Mortgage Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery
Determination was made or the final payment was made, as the case may be,
plus (ii) without taking into account the amount described in subclause
(1)(b) of this definition, all accrued but unpaid interest (exclusive,
however, of any portion of such accrued but unpaid interest that represents
Default Interest or, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) on such Pooled Mortgage
Loan or such REO Pooled Mortgage Loan, as the case may be, to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made or such final payment was made, as the case may be,
plus (iii) without duplication with amounts included under another
subclause above, all related unreimbursed Servicing Advances (together with
Unliquidated Advances in respect of prior Servicing Advances) and unpaid
Liquidation Expenses, plus (iv) the amount of any and all related Special
Servicing Fees, Liquidation Fees and/or Workout Fees with respect to such
Mortgage Loan or successor REO Mortgage Loan, to the extent not previously
reflected as Realized Loss with respect to such Mortgage Loan or successor
REO Mortgage Loan, over (b) all payments and proceeds, if any, Received by
the Trust in respect of such Pooled Mortgage Loan or, to the extent
allocable to such REO Pooled Mortgage Loan, the related REO Property, as
the case may be, during the Collection Period in which such Final Recovery
Determination was made or such final payment was made, as the case may be;
(2) each Pooled Mortgage Loan as to which any portion of the
principal or previously accrued interest payable thereunder or any
Unliquidated Advance was canceled in connection with a bankruptcy or
similar proceeding involving the related Borrower or a modification,
extension, waiver or amendment of such Mortgage Loan granted or agreed to
by the applicable Master Servicer or the applicable Special Servicer
pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the related Non-Trust Master Servicer or the related
Non-Trust Special Servicer pursuant to the related Non-Trust Servicing
Agreement), the amount of such principal and/or interest (other than
Default Interest and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) or Unliquidated Advance so
canceled; and
(3) each Pooled Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Borrower or a modification, extension, waiver or amendment of such Pooled
Mortgage Loan granted or agreed to by the applicable Master Servicer or the
applicable Special Servicer pursuant to Section 3.20 (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust Master
Servicer or the related Non-Trust Special Servicer pursuant to the related
Non-Trust Servicing Agreement), the amount of the consequent reduction in
the interest portion of each successive Monthly Payment due thereon (on the
related Due Date for the affected Monthly Payment).
Notwithstanding the foregoing, any allocation of any Realized Loss to
any REMIC I Regular Interest, any REMIC II Regular Interest or any Class of
Principal Balance Certificates, as the case may be, may occur (i) in the case of
any amount described in clause (1) or clause (2) above, solely pursuant to, in
accordance with and to the extent provided by the combination of (x) the
accounting for such amount that occurs under the definition of "Stated Principal
Balance" and (y) the operation of Section 4.04 of this Agreement and (ii) in the
case of any amount described in clause (3) above, solely pursuant to, in
accordance with and to the extent provided by the operation of Section 4.04 of
this Agreement.
"Realized Loss Report": With respect to each Collection Period, the
report in the form of and containing the information provided for on Exhibit E-4
hereto. The Realized Loss Report shall be in Excel format or such other
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format as is reasonably acceptable to the Master Servicers, the Servicer Report
Administrator, the Trustee, the Certificate Administrator and the Controlling
Class Representative.
"Received by the Trust": In the case of: (a) a Non-Trust-Serviced
Pooled Mortgage Loan or any REO Property related thereto, received by the
Trustee (or the applicable Master Servicer on behalf of the Trustee), as holder
of the Mortgage Note for such Non-Trust-Serviced Pooled Mortgage Loan, on behalf
of the Trust; and (b) any Serviced Mortgage Loan or related REO Property,
received by a Master Servicer (or any Sub-Servicer thereof), a Special Servicer
(or any Sub-Servicer thereof) or the Trustee, as the case may be, on behalf of
the Trust and/or, in connection with a Serviced Mortgage Loan Group, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s).
"Record Date": With respect to any Distribution Date and each Class of
Certificates, the last Business Day of the month immediately preceding the month
in which such Distribution Date occurs.
"Reference Rate": With respect to any Interest Accrual Period, the
applicable rate per annum set forth on the schedule attached hereto as Schedule
IV.
"Registered Certificate": Any Certificate that has been the subject of
registration under the Securities Act. As of the Closing Date, the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M and Class A-J
Certificates constitute Registered Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (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": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, a single global Certificate, or multiple
global Certificates collectively, in definitive, fully registered form without
interest coupon, each of which Certificates bears a Regulation S Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United States in
reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum is equal to the "prime rate" published in
the "Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee, in its sole discretion, shall select an
equivalent publication that publishes such "prime rate"; and if such "prime
rate" is no longer generally published or is limited, regulated or administered
by a governmental or quasi-governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicers and the Special Servicers in writing of its selection.
"Release Date": The date that is 40 days following the later of (i)
the Closing Date and (ii) the commencement of the initial offering of the
Non-Registered Certificates in reliance on Regulation S.
"Relevant Servicing Criteria" means the Servicing Criteria applicable
to each Reporting Servicer (as set forth, with respect to each Master Servicer,
the Special Servicer, each Primary Servicer, the Certificate Administrator and
the Trustee, on Schedule VIII attached hereto). For clarification purposes,
multiple Reporting Servicers can have
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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, a Master
Servicer, the Special Servicer, a Primary Servicer, the Certificate
Administrator or any Sub-Servicer, the term "Relevant Servicing Criteria" may
refer to a portion of the Relevant Servicing Criteria applicable to the Trustee,
a Master Servicer, the Special Servicer, a Primary Servicer, the Certificate
Administrator or such Sub-Servicer.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860A through G of the Code.
"REMIC I": The segregated pool of assets designated as such in Section
2.12(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests have the
designations and terms provided for in Section 2.12.
"REMIC I Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC I Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.12(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such in
Section 2.14(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests have the
designations provided for in the Preliminary Statement hereto. The REMIC II
Regular Interests have the terms provided for in Section 2.14.
"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.14(f).
"REMIC II Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC II
issued pursuant to this Agreement.
"REMIC III": The segregated pool of assets designated as such in
Section 2.16(a).
"REMIC III Certificate": Any of the Interest Only Certificates and the
Principal Balance Certificates. The REMIC III Certificates have the terms
provided for in Section 2.16.
"REMIC III Component": Any of the separate beneficial ownership
interests in REMIC III issued hereunder, evidenced by a Class of Interest Only
Certificates. The REMIC III Components have the designations provided for in the
Preliminary Statement hereto. The REMIC III Components have the terms provided
for in Section 2.16.
"REMIC III Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC III
issued pursuant to this Agreement.
"REMIC Pool": Any of REMIC I, REMIC II or REMIC III.
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"REMIC Provisions": 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 proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by a Special Servicer, pursuant to and for the benefit of the Persons
specified in Section 3.16(b), which shall be entitled (i) in the case of the
General Special Servicer, "ARCap Servicing, Inc. [or the name of any successor
Special Servicer], as General Special Servicer, on behalf of LaSalle Bank
National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12, and if
the account is established for the deposit of funds received in respect of one
or more REO Properties related to any Serviced Mortgage Loan Group for which it
is the applicable Special Servicer for the owners of the applicable Serviced
Non-Pooled Mortgage Loans, as their interests may appear, REO Account"; (ii) in
the case of the 0000 Xxxxxxxx Special Servicer, "Prudential Asset Resources Inc.
[or the name of any successor 0000 Xxxxxxxx Special Servicer], as 0000 Xxxxxxxx
Special Servicer, on behalf of LaSalle Bank National Association [or the name of
any successor Trustee], as Trustee, in trust for the registered holders of the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-PWR12, and for the owner of the 0000
Xxxxxxxx Non-Pooled Subordinate Loan, REO Account"; and (iii) in the case of the
Tuscany Plaza Special Servicer, "Prudential Asset Resources Inc. [or the name of
any successor Tuscany Plaza Special Servicer], as Tuscany Plaza Special
Servicer, on behalf of LaSalle Bank National Association [or the name of any
successor Trustee], as Trustee, in trust for the registered holders of the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-PWR12, and for the owner of the Tuscany Plaza
Non-Pooled Subordinate Loan, REO Account".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Non-Trust
Servicing Agreement).
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18 (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Non-Trust
Servicing Agreement).
"REO Extension": As defined in Section 3.16(a).
"REO Mortgage Loan": The successor mortgage loan to a Mortgage Loan
(including those deemed to be outstanding with respect to a Serviced Non-Pooled
Mortgage Loan or a Non-Trust-Serviced Pooled Mortgage Loan), which successor
mortgage loan is deemed for purposes hereof to be outstanding with respect to
each REO Property. Each REO Mortgage Loan shall be deemed to provide for monthly
payments of principal and/or interest equal to its Assumed Monthly Payment and
otherwise to have the same terms and conditions as its predecessor Mortgage Loan
(such terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan and the acquisition of the related REO Property on
behalf of the Trust or, if applicable, in the case of any REO Property related
to any Mortgage Loan Group, on behalf of the Trust and the respective holders of
the related Non-Pooled Mortgage Loan(s)). Each REO Mortgage Loan shall be deemed
to have an initial unpaid principal balance and Stated Principal Balance equal
to the unpaid principal balance and Stated Principal Balance, respectively, of
its predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Monthly Payments (other than a Balloon Payment), Assumed Monthly Payments (in
the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
applicable Master Servicer, the applicable Special Servicer or the Trustee in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Master
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Servicing Fees, Special Servicing Fees and Advances (together with Unliquidated
Advances in respect of prior Advances), together with any related unpaid Advance
Interest on such Advances (other than Unliquidated Advances), shall continue to
be payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the applicable Master Servicer, the applicable Special Servicer, the
Trustee or the Trust, as the case may be, in respect of an REO Mortgage Loan.
"REO Pooled Mortgage Loan": An REO Mortgage Loan that relates to a
predecessor Pooled Mortgage Loan.
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (and, in the case
of each such Mortgaged Property relating to a Serviced Mortgage Loan Group, also
on behalf of the related Serviced Non-Pooled Mortgage Loan Noteholder(s))
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan; provided that a Mortgaged Property that secures a
Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO Property if and
when it is acquired under the related Non-Trust Servicing Agreement for the
benefit of the Trustee as the holder of such Non-Trust-Serviced Pooled Mortgage
Loan and of the holder of the related Non-Pooled Pari Passu Companion Loan
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with a default or imminent default
of such Non-Trust-Serviced Pooled Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property, other than any income,
profits or proceeds derived from the REO Disposition of such REO Property.
"REO Tax": As defined in Section 3.17(a).
"Replacement Pooled Mortgage Loan": Any Qualifying Substitute Mortgage
Loan that is substituted by a Pooled Mortgage Loan Seller for a Defective Pooled
Mortgage Loan as contemplated by Section 2.03.
"Reportable Event": As defined in Section 11.09.
"Reporting Servicer": Each Master Servicer, the Special Servicer and
any Servicing Function Participant (including the Primary Servicers, the
Certificate Administrator, the Trustee and each Sub-Servicer), as the case may
be.
"Request for Release": A request signed by a Servicing Officer of, as
applicable, a Master Servicer in the form of Exhibit C-1 attached hereto or a
Special Servicer in the form of Exhibit C-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(a).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to (i) in the case of
fidelity bond coverage provided by such insurance xxxxxxx, "X0" by Xxxxx'x and
"A-" by S&P, (ii) in the case of a policy or policies of insurance issued by
such insurance carrier covering loss occasioned by the errors and omissions of
officers and employees, "A2" by Xxxxx'x and "A-" by S&P, and (iii) in the case
of any other insurance coverage provided by such insurance xxxxxxx, "X0" by
Xxxxx'x and "A-" by S & P; provided, however, that (A) an insurance carrier
shall be deemed to have the applicable claims-paying ability ratings set forth
above if the obligations of such insurance carrier under the related insurance
policy are guaranteed or backed in writing by an entity that has long-term
unsecured debt obligations that are rated not lower than the ratings set forth
above or claims-paying ability ratings that are not lower than the ratings set
forth above; and (B) an insurance carrier shall be deemed to have the applicable
claims-paying ability ratings set forth above if the Rating Agency whose rating
requirement set forth in clause (i) or (ii), as applicable, of this definition
has not been met has confirmed in writing that such insurance carrier would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (and, if the insurance carrier is an issuer of an insurance policy
relating to a Serviced Mortgage Loan Group or one or more Mortgaged Properties
that secured such
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Serviced Mortgage Loan Group, as applicable, the related Serviced Mortgage Loan
Group Controlling Party has confirmed in writing that such insurance carrier is
acceptable to such Serviced Mortgage Loan Group Controlling Party), unless (with
respect to policies maintained by Borrowers) a higher claims-paying ability
rating is required under any of the Mortgage Loan Documents. In connection with
insurance coverage related to one or more of the PCF Pooled Mortgage Loans or
PCFII Pooled Mortgage Loans or to the obligations of the applicable Master
Servicer (or a Primary Servicer serving on its behalf) with respect to one or
more PCF Pooled Mortgage Loans or PCFII Pooled Mortgage Loans, insurance carried
through Lloyd's of London shall be deemed to have been issued by an insurer with
the Required Claims-Paying Ratings, so long as Lloyd's of London has a financial
strength rating of not less than "A-" by each of S&P and A.M. Best.
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period": As defined in Section 2.03(b).
"Responsible Officer": When used (a) with respect to the Certificate
Administrator, any Vice President, any Trust Officer, any Assistant Secretary or
any other officer of the Certificate Administrator customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement; and (b)
with respect to the Trustee, any Vice President or Trust Officer thereof.
"Restricted Servicer Reports": Each of the CMSA Servicer Watch List,
the CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet,
the CMSA Financial File, the CMSA Property File and the CMSA Comparative
Financial Status Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, a single global Certificate, or multiple
global Certificates collectively, registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, each
of which Certificates bears a Qualified Institutional Buyer CUSIP number and
does not bear a Regulation S Legend.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the other parties hereto, and specific ratings of Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
References herein to "applicable rating category" (other than such references to
"highest applicable rating category") shall, in the case of S&P, be deemed to
refer to such applicable rating category of S&P, without regard to any plus or
minus or other comparable rating qualification.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.08.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument creating in favor
of the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
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"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Pooled 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 market.
"Serviced Mortgage Loan": Any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other than a
Non-Trust-Serviced Pooled Mortgage Loan (and any Non-Pooled Mortgage Loan that
is related to such Non-Trust-Serviced Pooled Mortgage Loan).
"Serviced Mortgage Loan Group": Each group of mortgage loans (if any)
that is part of a split loan structure that is principally serviced and
administered under this Agreement as identified in the Preliminary Statement
hereto.
"Serviced Mortgage Loan Group Controlling Party": In connection with a
Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled
Subordinate Loans, the holder(s) of the related Mortgage Loans that constitute
the "controlling lender" or "directing lender", or are otherwise designated as
the noteholders whose consent or consultation is required as a condition to
various actions proposed to be taken by the servicer of such Mortgage Loan
Group, if and as contemplated by the related Mortgage Loan Group Intercreditor
Agreement, which holders are (i) in the case of the 0000 Xxxxxxxx Loan Group,
the 0000 Xxxxxxxx Controlling Party, and (ii) in the case of the Tuscany Plaza
Loan Group, the Tuscany Plaza Controlling Party.
"Serviced Non-Pooled Mortgage Loan": Each of the mortgage loans (if
any), other than a Pooled Mortgage Loan, that is part of a split loan structure
that is principally serviced and administered under this Agreement as identified
in the Preliminary Statement hereto. For the avoidance of doubt, only the 0000
Xxxxxxxx Non-Pooled Subordinate Loan and the Tuscany Plaza Non-Pooled
Subordinate Loan constitute Serviced Non-Pooled Mortgage Loans hereunder.
"Serviced Non-Pooled Mortgage Loan Noteholder": The holder of any
Serviced Non-Pooled Mortgage Loan.
"Serviced Non-Pooled Pari Passu Companion Loan": Each of the mortgage
loans (if any), other than a Pooled Mortgage Loan, that is part of a split loan
structure that is principally serviced and administered under this Agreement, is
secured by the same Mortgage encumbering a Pooled Mortgage Loan and is pari
passu in right of payment with that Pooled Mortgage Loan. The Serviced
Non-Pooled Pari Passu Companion Loans are not "Pooled Mortgage Loans" or part of
the Trust Fund, any REMIC Pool or any Grantor Trust Pool. For the avoidance of
doubt, no Mortgage Loan constitutes a Serviced Non-Pooled Pari Passu Companion
Loan hereunder.
"Serviced Non-Pooled Pari Passu Companion Loan Noteholder": The holder
of a Serviced Non-Pooled Pari Passu Companion Loan.
"Serviced Non-Pooled Subordinate Loan": Each of the mortgage loans (if
any), other than a Pooled Mortgage Loan, that is part of a split loan structure
that is principally serviced and administered under this Agreement, is secured
by the same Mortgage encumbering a Pooled Mortgage Loan and is subordinate in
right of payment with that Pooled Mortgage Loan. The Serviced Non-Pooled
Subordinate Loans are not "Pooled Mortgage Loans" or part of the Trust Fund, any
REMIC Pool or any Grantor Trust Pool. For the avoidance of doubt, only the 0000
Xxxxxxxx Non-Pooled Subordinate Loan and the Tuscany Plaza Non-Pooled
Subordinate Loan constitute Serviced Non-Pooled Subordinate Loans hereunder.
"Serviced Non-Pooled Subordinate Noteholder": The holder of a Serviced
Non-Pooled Subordinate Loan.
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"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that is a
Serviced Mortgage Loan.
"Servicer Report Administrator": Xxxxx Fargo Bank, National
Association as a Master Servicer (without regard to the final sentence of the
definition of "Master Servicer") or any successor thereto appointed as provided
herein.
"Servicer Report Administrator Fee": With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as such and
payable to the Servicer Report Administrator pursuant to Section 8.05(a).
"Servicer Report Administrator Fee Rate": Five ten-thousands of one
percent (0.0005%) per annum.
"Servicing Account": The account or accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys' fees and
expenses, incurred or to be incurred, as the context requires, by the applicable
Master Servicer or the applicable Special Servicer (or, if applicable, the
Trustee) in connection with the servicing of a Serviced Mortgage Loan (or, in
the limited circumstances set forth in Section 3.01(g), in connection with the
servicing of a Non-Trust-Serviced Pooled Mortgage Loan) as to which a default,
delinquency or other unanticipated event has occurred or is imminent, or in
connection with the administration of any Administered REO Property, including:
(1) any such costs and expenses associated with (a) compliance
with the obligations of the applicable Master Servicer and/or the
applicable Special Servicer set forth in Sections 2.03, 3.03(c) and 3.09,
(b) the preservation, insurance, restoration, protection and management of
either a Mortgaged Property securing a Serviced Mortgage Loan or an
Administered REO Property, including the cost of any "force placed"
insurance policy purchased by the applicable Master Servicer or the
applicable Special Servicer to the extent such cost is allocable to a
particular Mortgaged Property that the applicable Master Servicer or
Special Servicer is required to cause to be insured pursuant to Section
3.07(a), (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds in respect of any such Serviced Mortgage Loan or any
Administered REO Property, (d) any enforcement or judicial proceedings with
respect to any such Mortgage Loan, including foreclosures and similar
proceedings, (e) the operation, management, maintenance and liquidation of
any Administered REO Property, (f) obtaining any Appraisal required to be
obtained hereunder, and (g) UCC filings (to the extent that the costs
thereof are not reimbursed by the related Borrower), and
(2) the reasonable and direct out-of-pocket travel expenses
incurred by the applicable Special Servicer in connection with performing
inspections pursuant to Section 3.12(a);
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of a Master Servicer, a Special
Servicer or the Trustee, as the case may be, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (B) costs incurred by or on
behalf of any such party hereto or any Affiliate thereof in connection with its
purchase of any Mortgage Loan or REO Property pursuant to any provision of this
Agreement or any intercreditor agreement or similar agreement or (C) costs or
expenses expressly required under this Agreement to be borne by a Master
Servicer, a Special Servicer or the Trustee.
"Servicing Advances" shall also include, however, any other
expenditure which is expressly designated as a "Servicing Advance" herein. All
Emergency Advances made by a Master Servicer at the direction of the applicable
Special Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of Item
1122 of Regulation AB, as such may be amended from time to time.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File, but including originals or copies of all
management agreements which are not covered by clause (xvii) of the definition
of
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"Mortgage File") that are in the possession or under the control of, or that are
required (pursuant to the applicable Pooled Mortgage Loan Purchase Agreement,
this Agreement or otherwise) to be delivered and actually have been delivered
to, as the context may require, the applicable Master Servicer or the applicable
Special Servicer and relating to the origination and servicing of any Mortgage
Loan or the administration of any REO Property and reasonably necessary for the
ongoing administration and/or servicing of the applicable Mortgage Loan,
including any documents delivered by a Pooled Mortgage Loan Seller as described
in clause (i) of Section 2.01(f).
"Servicing Function Participant": Any Person, other than a Master
Servicer and the Special Servicer, that, within the meaning of Item 1122 of
Regulation AB, is primarily responsible for performing activities addressed by
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Pooled Mortgage Loans (based on their Stated Principal Balance). For
clarification purposes, the Trustee, the Primary Servicers and the Certificate
Administrators are each a Servicing Function Participant.
"Servicing Officer": Any officer or employee of a Master Servicer or a
Special Servicer involved in, or responsible for, the administration and
servicing of Mortgage Loans, whose name and specimen signature appear on a list
of servicing officers furnished by such party to the Certificate Administrator,
the Trustee and the Depositor on the Closing Date, as such list may thereafter
be amended from time to time by such Master Servicer or such Special Servicer,
as the case may be.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected Mortgage Loan,
the date that servicing thereof is returned by the Special Servicer to the
applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicers and
each of the Special Servicers, to service and administer the Serviced Mortgage
Loans and any Administered REO Properties that such party is obligated to
service and administer pursuant to this Agreement in the best interests and for
the benefit of the Certificateholders (or, in the case of a Serviced Mortgage
Loan Group, for the benefit of the Certificateholders and the related Serviced
Non-Pooled Mortgage Loan Noteholders) (as determined by the applicable Master
Servicer or the applicable Special Servicer, as the case may be, in its good
faith and reasonable judgment), as a collective whole (it being understood, in
the case of the Serviced Mortgage Loan Groups containing Non-Pooled Subordinate
Loans, that the interests of the Non-Pooled Subordinate Noteholders are junior
promissory notes, subject to the terms and conditions of the related Mortgage
Loan Group Intercreditor Agreement), in accordance with applicable law and the
terms of this Agreement, and the respective Mortgage Loans (including, with
respect to a Serviced Mortgage Loan Group, the related Mortgage Loan Group
Intercreditor Agreement, as applicable) and, to the extent consistent with the
foregoing, in accordance with the following standards:
(a) with the same care, skill, prudence and diligence as it
services and administers comparable mortgage loans and manages real
properties on behalf of third parties or on behalf of itself, whichever is
the higher standard with respect to mortgage loans and REO properties that
are comparable to those for which it is responsible hereunder, giving due
consideration to customary and usual standards of practice utilized by
prudent institutional commercial mortgage loan servicers under comparable
circumstances;
(b) with a view to: (i) in the case of a Master Servicer, the
timely collection of all scheduled payments of principal and interest,
including Balloon Payments, under the Serviced Mortgage Loans and the full
collection of all Prepayment Premiums and Yield Maintenance Charges that
may become payable under the Serviced Mortgage Loans, and (ii) in the case
of the applicable Special Servicer and any Serviced Mortgage Loan that is
(A) a Specially Serviced Mortgage Loan or (B) a Serviced Mortgage Loan as
to which the related Mortgaged Property has become an Administered REO
Property, the maximization of recovery on such Mortgage Loan to the
Certificateholders (or, in the case of a Serviced Mortgage Loan Group, to
the Certificateholders and
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the related Serviced Non-Pooled Mortgage Loan Noteholders, as applicable),
as a collective whole (it being understood, in the case of the Serviced
Mortgage Loan Groups containing Non-Pooled Subordinate Loans, that the
interests of the Non-Pooled Subordinate Noteholders are junior promissory
notes, subject to the terms and conditions of the related Mortgage Loan
Group Intercreditor Agreement), of principal and interest, including
Balloon Payments, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Mortgage Loan Group, to
the Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholders, as applicable), as a collective whole, to be performed at a
rate determined by the applicable Special Servicer but in no event less
than the related Net Mortgage Rate (or, in the case of a Serviced Mortgage
Loan Group, less than the weighted average of the Net Mortgage Rates for
the Mortgage Loans in such Serviced Mortgage Loan Group)); and
(c) without regard to (i) any known relationship that the
applicable Master Servicer or the applicable Special Servicer, as the case
may be, or any of its Affiliates may have with a related Borrower, a
Mortgage Loan Seller or any other party to this Agreement, (ii) the
ownership of any Certificate or any interest in any other Mortgage Loan in
a Mortgage Loan Group by the applicable Master Servicer or the applicable
Special Servicer, as the case may be, or any of its Affiliates, (iii) the
obligation of the applicable Master Servicer to make Advances or otherwise
to incur servicing expenses with respect to any Serviced Mortgage Loan or
Administered REO Property (or, if applicable, to make P&I Advances or (to
the limited extent set forth herein) Servicing Advances with respect to a
Non-Trust-Serviced Pooled Mortgage Loan), (iv) the obligation of the
applicable Special Servicer to make, or direct the applicable Master
Servicer to make, Servicing Advances (including Emergency Advances) or
otherwise to incur servicing expenses with respect to any Serviced Mortgage
Loan or Administered REO Property, (v) the right of the applicable Master
Servicer or the applicable Special Servicer, as the case may be, or any of
its Affiliates to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction, (vi) any ownership, servicing and/or management by the
applicable Master Servicer or the applicable Special Servicer, as the case
may be, or any of its Affiliates, of any other mortgage loans or real
property, (vii) the ownership by the applicable Master Servicer or the
applicable Special Servicer, as the case may be, or any of its Affiliates
of any other debt owed by, or secured by ownership interests in, any of the
Borrowers or any Affiliate of a Borrower, and (viii) the obligations of the
applicable Master Servicer or the applicable Special Servicer, as the case
may be, or any of its Affiliates to repurchase any Pooled Mortgage Loan
from the Trust Fund, or to indemnify the Trust Fund, in any event as a
result of a Material Breach or a Material Document Defect;
provided that the foregoing standards shall apply with respect to a
Non-Trust-Serviced Pooled Mortgage Loan and any related REO Property only to the
extent that the applicable Master Servicer or the applicable Special Servicer
has any express duties or rights to grant consent with respect thereto pursuant
to this Agreement.
"Servicing Transfer Event": With respect to any Serviced Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Mortgage Loan".
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the then outstanding Certificates.
"Special Servicer": Each of the General Special Servicer, the 0000
Xxxxxxxx Special Servicer and the Tuscany Plaza Special Servicer, as applicable.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO Property related to
a Non-Trust-Serviced Pooled Mortgage Loan), the fee designated as such and
payable to the applicable Special Servicer pursuant to the first paragraph of
Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO Property related to
a Non-Trust-Serviced Pooled Mortgage Loan), 0.25% per annum.
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"Specially Designated Defaulted Pooled Mortgage Loan": A Serviced
Pooled Mortgage Loan that both (A) is a Specially Serviced Mortgage Loan and (B)
either (i) is delinquent 120 days or more with respect to any Balloon Payment or
60 days or more with respect to any other Monthly Payment, with such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (ii) is a Pooled
Mortgage Loan as to which the amounts due thereunder have been accelerated
following any other material default.
"Specially Designated Mortgage Loan Documents": With respect to any
Pooled Mortgage Loan, subject to Section 1.04, the following documents on a
collective basis:
(i) the original executed Mortgage Note or alternatively, if the
original executed Mortgage Note has been lost, a lost note affidavit and
indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, in each case (unless
the particular item has been sent for recording but has not been returned
from the applicable recording office) with evidence of recording indicated
thereon; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 90th 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, there shall be delivered to the Trustee or
a Custodian on its behalf 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 Pooled Mortgage Loan
Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that
such copy is a true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage), in each case
(unless the particular item has been sent for recording but has not been
returned from the applicable recorder) with evidence of recording thereon;
(iv) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if the policy has not yet been issued, an original or copy of a written
commitment "marked-up" at the closing of such Mortgage Loan, interim binder
or the pro forma title insurance policy, in each case evidencing a binding
commitment to issue such policy);
(v) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the original
or a copy of the Ground Lease relating to such Mortgage Loan;
(vi) except in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, if any documents relating to, evidencing or constituting Additional
Collateral for such Mortgage Loan are in the form of a Letter of Credit,
the original of any such Letter of Credit (except that either (x) the
"Mortgage File" shall initially contain the original of such Letter of
Credit (and a copy of such Letter of Credit shall initially be delivered to
the applicable Master Servicer) and, thereafter, such original shall be
delivered to the applicable Master Servicer (with a copy of such Letter of
Credit to be maintained by the Trustee) with reasonable promptness
following request in connection with the applicable Master Servicer's
performance of its duties hereunder, or (y) the "Mortgage File" shall
initially contain a copy of such Letter of Credit and the original of such
Letter of Credit shall initially be delivered to the applicable Master
Servicer (or a Primary Servicer on its behalf) and, thereafter, such
original shall be maintained by such Master Servicer (or a Primary Servicer
on its behalf)); and
(vii) if the related Mortgaged Property is a hospitality property
that is subject to a franchise or similar arrangement, (a) an original or a
copy of any franchise or similar agreement and (b) either (i) a signed copy
of the comfort letter delivered by the franchisor or similar person for the
benefit of the holder of the Mortgage Loan in connection with the Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage
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Loan, together with such instrument(s) of notice or transfer (if any) as
are necessary to transfer or assign to the Trust or the Trustee the
benefits of such comfort letter, or (ii) a copy of the comfort letter
delivered by the franchisor or similar person for the benefit of the holder
of the Mortgage Loan in connection with such origination or acquisition of
the Mortgage Loan, together with a signed copy or a fax copy of a new
comfort letter (in substantially the same form and substance as the comfort
letter delivered in connection with such origination or acquisition) by the
franchisor or similar person for the benefit of the Trust or the Trustee
(and, if a fax copy of a new comfort letter is delivered, then the original
copy shall be included in the "Mortgage File" promptly following receipt
thereof by the related Pooled Mortgage Loan Seller).
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan as to
which any of the following events has occurred:
(a) the related Borrower has failed to make when due any Balloon
Payment, and the Borrower has not delivered to the applicable Master
Servicer, on or prior to the due date of such Balloon Payment, a written
refinancing commitment from an acceptable lender and reasonably
satisfactory in form and substance to the applicable Master Servicer which
provides that such refinancing will occur within 120 days after the date on
which such Balloon Payment will become due (provided that such Mortgage
Loan shall immediately become a Specially Serviced Mortgage Loan if either
(x) such refinancing does not occur before the expiration of the time
period for refinancing specified in such binding commitment or (y) the
applicable Master Servicer is required to make a P&I Advance in respect of
such Mortgage Loan (or, in the case of any Serviced Non-Pooled Mortgage
Loan, in respect of the Pooled Mortgage Loan included in the same Serviced
Mortgage Loan Group) at any time prior to such a refinancing); or
(b) the related Borrower has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment (other than a
Balloon Payment) required under the related Mortgage Note or the related
Mortgage, which failure has continued unremedied for sixty (60) days; or
(c) the applicable Master Servicer determines (in accordance with
the Servicing Standard) that a default in making any Monthly Payment (other
than a Balloon Payment) or any other material payment (other than a Balloon
Payment) required under the related Mortgage Note or the related Mortgage
is likely to occur in the foreseeable future, and such default is likely to
remain unremedied for at least sixty (60) days beyond the date on which the
subject payment will become due; or the applicable Master Servicer
determines (in accordance with the Servicing Standard) that a default in
making a Balloon Payment is likely to occur in the foreseeable future, and
such default is likely to remain unremedied for at least sixty (60) days
beyond the date on which such Balloon Payment will become due (or, if the
Borrower has delivered a written refinancing commitment from an acceptable
lender and reasonably satisfactory in form and substance to the applicable
Master Servicer which provides that such refinancing will occur within 120
days following the date on which such Balloon Payment will become due, such
Master Servicer determines (in accordance with the Servicing Standard) that
(A) the Borrower is likely not to make one or more Assumed Monthly Payments
prior to such a refinancing or (B) such refinancing is not likely to occur
within 120 days following the date on which such Balloon Payment will
become due); or
(d) there shall have occurred a default (including, in the
applicable Master Servicer's or the Special Servicer's judgment, the
failure of the related Borrower to maintain any insurance required to be
maintained pursuant to the related Mortgage Loan Documents, unless such
default has been waived in accordance with Section 3.07 or Section 3.20
hereof) under the related Mortgage Loan Documents, other than as described
in clause (a), (b) or (c) above, that may, in the applicable Master
Servicer's or the applicable Special Servicer's good faith and reasonable
judgment, materially impair the value of the related Mortgaged Property as
security for such Mortgage Loan or otherwise materially and adversely
affect the interests of Certificateholders (or, in the case of any Serviced
Non-Pooled Mortgage Loan, the interests of the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)), which default has continued unremedied for
the applicable cure period under the terms of such Mortgage Loan (or, if no
cure period is specified, 60 days); or
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(e) 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 or the appointment of a conservator or receiver or liquidator in any
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 related Borrower and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(f) the related Borrower shall have consented to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(g) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(h) the applicable Master Servicer or the applicable Special
Servicer shall have received notice of the commencement of foreclosure or
similar proceedings with respect to the related Mortgaged Property.
provided that a Serviced Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, or at such time as such of the following as are applicable occur with
respect to the circumstances identified above that caused such Mortgage Loan to
be characterized as a Specially Serviced Mortgage Loan (and provided that no
other Servicing Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a)
and (b) above, the related Borrower has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Borrower or by reason of a modification,
waiver or amendment granted or agreed to by the applicable Master Servicer
or the applicable Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c),
(e), (f), and (g) above, such circumstances cease to exist in the good
faith reasonable judgment, exercised in accordance with the Servicing
Standard, of the applicable Special Servicer;
(y) with respect to the circumstances described in clause (d)
above, such default is cured in the good faith reasonable judgment,
exercised in accordance with the Servicing Standard, of the applicable
Special Servicer; and
(z) with respect to the circumstances described in clause (h)
above, such proceedings are terminated.
Notwithstanding the foregoing, if a Servicing Transfer Event exists as
contemplated above in this definition for any Mortgage Loan in a Serviced
Mortgage Loan Group, it shall be deemed to exist for the other Mortgage Loans in
such Serviced Mortgage Loan Group.
"Specially Serviced Pooled Mortgage Loan": A Serviced Pooled Mortgage
Loan that constitutes a Specially Serviced Mortgage Loan. Notwithstanding
anything herein to the contrary, in no event shall a Non-Trust-Serviced Pooled
Mortgage Loan constitute a Specially Serviced Pooled Mortgage Loan hereunder.
"Startup Day": With respect to each REMIC Pool, the day designated as
such in Section 2.12(a) (in the case of REMIC I), Section 2.14(a) (in the case
of REMIC II) or Section 2.16(a) (in the case of REMIC III), as applicable.
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"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the related Mortgage Note (as in effect on the Closing Date
or, in the case of a Replacement Pooled Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Master Servicer or Special Servicer
pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust
Special Servicer pursuant to the related Non-Trust Servicing Agreement) and, in
the case of an ARD Mortgage Loan, without regard to its Anticipated Repayment
Date.
"Stated Principal Balance": With respect to any Pooled Mortgage Loan
(and any successor REO Pooled Mortgage Loan with respect thereto), a principal
balance which (a) initially shall equal the unpaid principal balance thereof as
of the related Cut-off Date or, in the case of any Replacement Pooled Mortgage
Loan, as of the related date of substitution, in any event after application of
all payments of principal due thereon on or before such date, whether or not
received, and (b) shall be permanently reduced on each subsequent Distribution
Date (to not less than zero) by the sum of:
(i) that portion, if any, of the Unadjusted Principal
Distribution Amount for such Distribution Date that is attributable to such
Pooled Mortgage Loan (or successor REO Pooled Mortgage Loan); and
(ii) the principal portion of any Realized Loss incurred in
respect of such Pooled Mortgage Loan (or successor REO Pooled Mortgage
Loan) during the related Collection Period;
provided that, if a Liquidation Event occurs in respect of any Mortgage Loan or
REO Property, then the "Stated Principal Balance" of such Mortgage Loan or of
the related REO Pooled Mortgage Loan, as the case may be, shall be zero
commencing as of the close of business on the Distribution Date next following
the Collection Period in which such Liquidation Event occurred.
"Subordinate Note Custodial Account": As defined in Section 3.04(f).
"Sub-Servicer": Any Person with which a Master Servicer or a Special
Servicer has entered into a Sub-Servicing Agreement with respect to the Mortgage
Loans in accordance with the terms hereof.
"Sub-Servicing Agreement": The written contract between a Master
Servicer or a Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22. For the avoidance of doubt, the Primary Servicing
Agreement does not constitute a Sub-Servicing Agreement.
"Substitution Shortfall Amount": In connection with the substitution
of one or more Replacement Pooled Mortgage Loans for any Defective Pooled
Mortgage Loan, the amount, if any, by which the Purchase Price for such
Defective Pooled Mortgage Loan (calculated as if it were to be repurchased,
instead of replaced, on the relevant date of substitution), exceeds the initial
Stated Principal Balance or the initial aggregate Stated Principal Balance, as
the case may be, of such Replacement Pooled Mortgage Loan(s) as of the date of
substitution.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Administrator": WFB, in its capacity as tax administrator
hereunder, or any successor tax administrator appointed as herein provided.
"Tax Administrator Fee": At any time when the Certificate
Administrator is not also the Tax Administrator, the portion of the Certificate
Administrator Fee payable to the Tax Administrator in an amount agreed to by the
Certificate Administrator and the Tax Administrator.
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"Tax Matters Person": With respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the manner provided
under Treasury Regulations Section 1.860F-4(d) and temporary Treasury
Regulations Section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(b), be the Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holder of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each REMIC Pool due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01(a).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trust": The trust created hereby.
"Trust Fund": Collectively, all of the assets of all the REMIC Pools
and all the Grantor Trust Pools.
"Trustee": LaSalle, in its capacity as trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Pooled Mortgage Loan and REO
Pooled Mortgage Loan, the fee designated as such and payable to the Trustee
pursuant to Section 8.05(a).
"Trustee Fee Rate": Sixty-four hundred-thousandths of one percent
(0.00064%) per annum.
"Tuscany Plaza Change of Control Event": The event that occurs by
operation of Section 19(b) of the Tuscany Plaza Intercreditor Agreement if, as
of any date of determination, either the holders or holder of more than 50% of
the principal balance of the Tuscany Plaza Non-Pooled Subordinate Loan is the
Borrower under the Tuscany Plaza Loan Group or an Affiliate thereof or (a) (1)
the initial principal balance of the Tuscany Plaza Non-Pooled Subordinate Loan
minus (2) the sum of (x) any principal payments, allocated to, and received on,
the Tuscany Plaza Non-Pooled Subordinate Loan, (y) any Appraisal Reduction
Amounts for the Tuscany Plaza Loan Group and (z) any realized losses on the
Tuscany Plaza Loan Group, is less than (b) 25% of an amount equal to (i) the
initial principal balance of the Tuscany Plaza Non-Pooled Subordinate Loan minus
(ii) principal payments allocated to and received on the Tuscany Plaza
Non-Pooled Subordinate Loan under the Tuscany Plaza Intercreditor Agreement.
"Tuscany Plaza Controlling Party": The Tuscany Plaza Non-Pooled
Subordinate Noteholder (or, if any portion of the principal balance of the
Tuscany Plaza Non-Pooled Subordinate Loan is held by the Borrower under the
Tuscany Plaza Loan Group or an Affiliate thereof, the holder or holders of more
than 50% of the principal balance of the Tuscany Plaza Non-Pooled Subordinate
Loan that are not the Borrower under the Tuscany Plaza Loan Group or an
Affiliate of such Borrower) at any time when a Tuscany Plaza Change of Control
Event (or, with respect to the right to appoint or replace the applicable
Special Servicer for the Tuscany Plaza Loan Group, a Tuscany Plaza Special
Servicing Transfer Event) does not exist or the Controlling Class Representative
at any time when a Tuscany Plaza Change of
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Control Event (or, with respect to the right to appoint or replace the
applicable Special Servicer for the Tuscany Plaza Loan Group, a Tuscany Plaza
Special Servicing Transfer Event) exists.
"Tuscany Plaza Intercreditor Agreement": That certain A/B Co-Lender
Agreement, dated as of April 20, 2006, by and between PMCF as initial note A
holder and PREFII Preferred Income Joint Venture, L.P., as initial note B
holder.
"Tuscany Plaza Loan Group": Collectively, the Tuscany Plaza Pooled
Mortgage Loan and the Tuscany Plaza Non-Pooled Subordinate Loan (including any
successor REO Mortgage Loans with respect to such loans).
"Tuscany Plaza Mortgaged Property": The Mortgaged Property identified
on the Pooled Mortgage Loan Schedule as "Tuscany Plaza".
"Tuscany Plaza Non-Pooled Subordinate Loan": The mortgage loan, with
an original principal balance in the amount of $3,375,000 that is secured by the
same Mortgage encumbering the Tuscany Plaza Mortgaged Properties as the Tuscany
Plaza Pooled Mortgage Loan and is subordinate in right of payment to the Tuscany
Plaza Pooled Mortgage Loan and is held as of the Closing Date by PREFII
Preferred Income Joint Venture, L.P. The Tuscany Plaza Non-Pooled Subordinate
Loan is not a "Pooled Mortgage Loan" or part of the Trust Fund, any REMIC Pool
or any Grantor Trust Pool.
"Tuscany Plaza Non-Pooled Subordinate Noteholder": The holder or
holders of the related Mortgage Note evidencing the Tuscany Plaza Non-Pooled
Subordinate Loan.
"Tuscany Plaza Pooled Mortgage Loan": The Pooled Mortgage Loan in the
original principal amount of $27,000,000 that is secured by the Mortgage
encumbering the Tuscany Plaza Mortgaged Property.
"Tuscany Plaza Special Servicer": PAR, in its capacity as special
servicer with respect to the Tuscany Plaza Loan Group, or any successor special
servicer of the Tuscany Plaza Loan Group appointed as provided herein.
"Tuscany Plaza Special Servicing Transfer Event": The event that
occurs if, as of any date of determination, (a) (1) the initial principal
balance of the Tuscany Plaza Non-Pooled Subordinate Loan minus (2) the sum of
(x) any principal payments, allocated to, and received on, the Tuscany Plaza
Non-Pooled Subordinate Loan, (y) any Appraisal Reduction Amounts for the Tuscany
Plaza Loan Group and (z) any realized losses on the Tuscany Plaza Loan Group, is
less than (b) 60% of an amount equal to (i) the initial principal balance of the
Tuscany Plaza Non-Pooled Subordinate Loan minus (ii) principal payments
allocated to and received on the Tuscany Plaza Non-Pooled Subordinate Loan under
the Tuscany Plaza Intercreditor Agreement.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed, or to be
filed, pursuant to the UCC.
"Unadjusted Principal Distribution Amount": As defined in the
definition of "Principal Distribution Amount".
"Uncertificated Accrued Interest": As defined in Section 2.12(g) with
respect to any REMIC I Regular Interest for any Interest Accrual Period and in
Section 2.14(g) with respect to any REMIC II Regular Interest for any Interest
Accrual Period.
"Uncertificated Distributable Interest": As defined in Section 2.12(g)
with respect to any REMIC I Regular Interest for any Distribution Date and in
Section 2.14(g) with respect to any REMIC II Regular Interest for any
Distribution Date.
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"Uncertificated Principal Balance": The principal balance outstanding
from time to time of any REMIC I Regular Interest (calculated in accordance with
Section 2.12(e) hereof) or any REMIC II Regular Interest (calculated in
accordance with Section 2.14(e) hereof).
"Underwriter Exemption": PTE 90-30 issued to Bear, Xxxxxxx & Co. Inc.
and PTE 90-24 issued to Xxxxxx Xxxxxxx & Co. Incorporated, each as amended by
XXX 00-00, XXX 0000-00 and PTE 2002-41 and as may be subsequently amended
following the Closing Date.
"Underwriters": Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated.
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"United States Tax Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its source or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States Tax Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code (or, to the extent provided in the applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 that elect to be treated as United States
Tax Persons).
"Unliquidated Advance": Any Advance previously made by a party hereto
that has been previously reimbursed, as between the Person that made the Advance
hereunder, on the one hand, and the Trust Fund, on the other, as part of a
Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of Section
3.05(a)(II) but that has not been recovered from the Borrower or otherwise from
collections on or the proceeds of the Mortgage Loan or REO Property in respect
of which the Advance was made.
"Unrestricted Servicer Reports": Each of the CMSA Loan Setup File, the
CMSA Loan Periodic Update File, the CMSA Delinquent Loan Status Report, the CMSA
Historical Loan Modification Report, the CMSA Historical Liquidation Report, the
CMSA REO Status Report, the CMSA Loan Level Reserve Report, the CMSA
Reconciliation of Funds Report and the Realized Loss Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Holders of the various Classes of
Principal Balance Certificates in proportion to the respective Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be allocated to
the Holders of the Class X Certificates. Voting Rights allocated to a particular
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the respective Percentage Interests evidenced by their respective
Certificates. No Voting Rights shall be allocated to the Class R or Class V
Certificateholders.
"Weighted Average REMIC I Remittance Rate": As defined in Section
2.14(f).
"WFB": Xxxxx Fargo Bank, National Association, or its successor in
interest.
"WFB Pooled Mortgage Loan": Any Mortgage Loan that is either an
Original WFB Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that was
delivered under the WFB Pooled Mortgage Loan Purchase Agreement in substitution
for an Original WFB Pooled Mortgage Loan.
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"WFB Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of June 8, 2006, between WFB as seller
and the Depositor as purchaser.
"Within Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable, in respect
of any particular Pooled Mortgage Loan, the status attributable to that Mortgage
Loan by reason of, if applicable, the fact that, although such Monthly Payment
or Assumed Monthly Payment has not been received, the Due Date, together with
any applicable grace period, for such Monthly Payment or Assumed Monthly Payment
has not passed.
"Workout-Delayed Reimbursement Amount": As defined in subsection
(II)(i) of Section 3.05(a).
"Workout Fee": The fee designated as such in, and payable to the
applicable Special Servicer in connection with Corrected Mortgage Loans pursuant
to, the second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.0%.
"Yield Maintenance Charge": With respect to any Mortgage Loan, any
premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, calculated, in whole or in
part, pursuant to a yield maintenance formula or otherwise pursuant to a formula
that reflects the lost interest, including any specified amount or specified
percentage of the amount prepaid which constitutes the minimum amount that such
Yield Maintenance Charge may be.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP as in effect from time to
time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts Received by the Trust in respect of any
Cross-Collateralized Group, including any payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such
collections on or in respect of Corrected Mortgage Loans), together with any
other cash recoveries on and proceeds of any
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Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans
constituting such Cross-Collateralized Group in accordance with the express
provisions of the related Mortgage Loan Documents and, in the absence of such
express provisions, in accordance with the Servicing Standard. All amounts
Received by the Trust in respect of or allocable to any particular Pooled
Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a
Cross-Collateralized Group, but excluding any Serviced Mortgage Loan Group and a
Non-Trust-Serviced Pooled Mortgage Loan), including any payments from Borrowers,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any
such collections on or in respect of Corrected Mortgage Loans), together with
any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Loan Documents and, in the absence of
such express provisions or if and to the extent that such terms authorize the
lender to use its discretion, shall be applied: first, as a recovery of any
related and unreimbursed Servicing Advances (together with, without duplication,
any Unliquidated Advances in respect of prior Servicing Advances and any prior
Servicing Advances theretofore determined to constitute Nonrecoverable Servicing
Advances) and, if applicable, unpaid Liquidation Expenses; second, as a recovery
of accrued and unpaid interest (together with, without duplication, any
Unliquidated Advances in respect of prior P&I Advances of such interest and any
P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I
Advances) on such Pooled Mortgage Loan to, but not including, the Due Date in
the Collection Period in which the collection occurred, exclusive, however, of
any portion of such accrued and unpaid interest that constitutes Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, that constitutes Post-ARD Additional Interest; third, as a recovery of
principal (together with, without duplication, any Unliquidated Advances in
respect of prior P&I Advances of such principal and any prior P&I Advances of
such principal theretofore determined to constitute Nonrecoverable P&I Advances)
of such Pooled Mortgage Loan then due and owing, including by reason of
acceleration of such Pooled Mortgage Loan following a default thereunder (or, if
a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, unless a Liquidation Event has occurred in respect of such
Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred in respect of such Pooled
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Default Charges then due and owing
under such Pooled Mortgage Loan; seventh, as a recovery of any Prepayment
Premium or Yield Maintenance Charge then due and owing under such Pooled
Mortgage Loan; eighth, as a recovery of any assumption fees and modification
fees then due and owing under such Pooled Mortgage Loan; ninth, as a recovery of
any other amounts then due and owing under such Pooled Mortgage Loan other than
remaining unpaid principal and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, other than Post-ARD Additional Interest; tenth, as a
recovery of any remaining principal of such Pooled Mortgage Loan to the extent
of its entire remaining unpaid principal balance; and, eleventh, in the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of
accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan to,
but not including, the date of receipt by or on behalf of the Trust.
(b) Amounts Received by the Trust with respect to each REO Property
(other than, if applicable, any REO Property related to any Serviced Mortgage
Loan Group or a Non-Trust-Serviced Pooled Mortgage Loan), exclusive of amounts
to be applied to the payment of the costs of operating, managing, maintaining
and disposing of such REO Property, shall be treated: first, as a recovery of
any related and unreimbursed Servicing Advances (together with any Unliquidated
Advances in respect of prior Servicing Advances and any prior Servicing Advances
theretofore determined to constitute Nonrecoverable Servicing Advances) and, if
applicable, unpaid Liquidation Expenses; second, as a recovery of accrued and
unpaid interest (together with any Unliquidated Advances in respect of prior P&I
Advances of such interest and any P&I Advances of interest theretofore
determined to constitute Nonrecoverable P&I Advances) on the related REO Pooled
Mortgage Loan to, but not including, the Due Date in the Collection Period of
receipt by or on behalf of the Trust, exclusive, however, of any portion of such
accrued and unpaid interest that constitutes Default Interest or, in the case of
an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its
Anticipated Repayment Date, that constitutes Post-ARD Additional Interest;
third, as a recovery of principal (together with any Unliquidated Advances in
respect of prior P&I Advances of such principal and any P&I Advances of
principal theretofore determined to constitute Nonrecoverable P&I Advances) of
the related REO Pooled Mortgage Loan to the extent of its entire unpaid
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principal balance; fourth, as a recovery of any Default Charges deemed to be due
and owing in respect of the related REO Pooled Mortgage Loan; fifth, as a
recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due
and owing in respect of the related REO Pooled Mortgage Loan; sixth, as a
recovery of any other amounts deemed to be due and owing in respect of the
related REO Pooled Mortgage Loan (other than, in the case of an REO Pooled
Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated
Repayment Date, accrued and unpaid Post-ARD Additional Interest); and seventh,
in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan
after its Anticipated Repayment Date, as a recovery of any accrued and unpaid
Post-ARD Additional Interest on such REO Pooled Mortgage Loan to, but not
including, the date of receipt by or on behalf of the Trust.
(c) Amounts collected on or with respect to each Serviced Mortgage
Loan Group or any related REO Property shall be applied in accordance with the
allocation and payment provisions of the applicable Mortgage Loan Group
Intercreditor Agreement. In no event, however, shall there be charged to or
borne by any one or more related Non-Pooled Noteholders any out-of-pocket
expense incurred under this Agreement that, in the good faith, reasonable
judgment of the applicable Master Servicer, the applicable Special Servicer, the
Trustee, the Certificate Administrator or the Tax Administrator, as applicable,
(i) relates primarily to the general administration of the Trust Fund (and is
not attributable to any particular mortgage loans), (ii) relates primarily to a
REMIC Pool or the general administration thereof, (iii) relates primarily to any
determination respecting the amount, payment or avoidance of any tax on the
Trust Fund under the REMIC Provisions or (iv) consists of the actual payment of
any REMIC tax. Section 1.03 and Section 3.05(a) of this Agreement shall be
construed in accordance with the preceding statement.
(d) The parties acknowledge that any payments, collections and
recoveries received by the parties to the Non-Trust Servicing Agreement related
to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by
such parties in accordance with the terms and conditions of the related Mortgage
Loan Group Intercreditor Agreement and such Non-Trust-Serviced Pooled Mortgage
Loan.
(e) For the purposes of this Agreement, Post-ARD Additional Interest
on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto
shall be deemed not to constitute principal or any portion thereof and shall not
be added to the unpaid principal balance or Stated Principal Balance of such ARD
Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of
the related Mortgage Loan Documents so permit. To the extent any Post-ARD
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
(f) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the applicable Master
Servicer and reflected in the appropriate monthly report from such Master
Servicer and in the appropriate monthly Certificate Administrator Report as
provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that any groups of Pooled Mortgage Loans identified on the Pooled
Mortgage Loan Schedule as being cross-collateralized with each other are, in the
case of each such particular group of Pooled Mortgage Loans, by their terms,
cross-defaulted and cross-collateralized with each other. For purposes of
reference only in this Agreement, and without in any way limiting the servicing
rights and powers of the applicable Master Servicer and/or the applicable
Special Servicer, with respect to any Cross-Collateralized Mortgage Loan (or
successor REO Mortgage Loan with respect thereto), the Mortgaged Property (or
REO Property) that relates or corresponds thereto shall be the property
identified in the Pooled Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, including each of the defined terms set forth in
Section 1.01, shall be interpreted in a manner consistent with this Section
1.04; provided that, if there exists with respect to any Cross-Collateralized
Group only one original of any document referred to in the definition of
"Mortgage File" covering all the Pooled Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Pooled Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Pooled Mortgage Loan.
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SECTION 1.05. Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
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ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, REMIC III
COMPONENTS, REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC III
RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established under the laws of the State of New York pursuant to this
Agreement and, further, that such trust be designated as "Bear Xxxxxxx
Commercial Mortgage Trust 2006-PWR12". LaSalle is hereby appointed, and does
hereby agree to act, as Trustee hereunder and, in such capacity, to hold the
Trust Fund in trust for the exclusive use and benefit of all present and future
Certificateholders. This Agreement is not intended to create a partnership or a
joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Original Pooled Mortgage Loans and all documents included in
the related Mortgage Files and Servicing Files, (ii) the rights of the Depositor
under Sections 2, 3, 4 (other than Section 4(c)) and 5 (and, to the extent
related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each
Pooled Mortgage Loan Purchase Agreement and (iii) all other assets included or
to be included in the Trust Fund. Such assignment includes (i) all scheduled
payments of principal and interest under and proceeds of the Original Pooled
Mortgage Loans received after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the respective Cut-off Date, which
amounts shall belong and be promptly remitted to the related Pooled Mortgage
Loan Seller), together with all documents delivered or caused to be delivered
hereunder with respect to the Original Pooled Mortgage Loans by the respective
Pooled Mortgage Loan Sellers (including all documents included in the related
Mortgage Files and Servicing Files and any related Additional Collateral); (ii)
any REO Property acquired in respect of an Original Pooled Mortgage Loan (or, in
the case of any REO Property related to a Non-Trust-Serviced Pooled Mortgage
Loan, the rights of the holder of the related Original Pooled Mortgage Loan with
respect thereto); and (iii) such funds or assets as from time to time are
deposited in each Collection Account (but not in any Companion Note Custodial
Account or any Subordinate Note Custodial Account), the Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account and, if
established, and subject to the rights of any related Serviced Non-Pooled
Mortgage Loan Noteholders, the REO Account. This conveyance is subject, however,
to the right of the Primary Servicers pursuant to the Primary Servicing
Agreements and the Designated Sub-Servicers pursuant to the Designated
Sub-Servicer Agreements and, in the case of any particular Original Pooled
Mortgage Loan, the rights of any other creditor(s) under any related
intercreditor agreement, co-lender agreement or similar agreement.
After the Depositor's transfer of the Original Pooled Mortgage Loans
to the Trustee pursuant to this Section 2.01(b), the Depositor shall not take
any action inconsistent with the Trust's ownership of the Pooled Mortgage Loans.
(c) The conveyance of the Original Pooled Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties hereto to constitute an absolute transfer of the Original Pooled
Mortgage Loans and such other related rights and property by the Depositor to
the Trustee for the benefit of the Certificateholders. Furthermore, it is not
intended that such conveyance be a pledge of security for a loan. If such
conveyance is determined to be a pledge of security for a loan, however, the
Depositor and the Trustee intend that the rights and obligations of the parties
to such loan shall be established pursuant to the terms of this Agreement. The
Depositor and the Trustee also intend and agree that, in such event, (i) this
Agreement shall constitute a security agreement under applicable law, (ii) the
Depositor shall be deemed to have granted to the Trustee (in such capacity) a
first priority security interest in all of the Depositor's right, title and
interest in and to the assets constituting the Trust Fund,
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including the Pooled Mortgage Loans subject hereto from time to time, all
principal and interest received on or with respect to such Mortgage Loans after
the Closing Date (other than scheduled payments of interest and principal due
and payable on such Mortgage Loans on or prior to the related Due Date in June
2006 or, in the case of a Replacement Pooled Mortgage Loan, on or prior to the
related date of substitution), all amounts held from time to time in each
Collection Account, the Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account and, if established, the REO Accounts, and
all investment earnings on such amounts, and all of the Depositor's right, title
and interest under the Pooled Mortgage Loan Purchase Agreements that are
described under clause (ii) of the first sentence of Section 2.01(b), (iii) the
possession by the Trustee or its agent of the Mortgage Notes with respect to the
Pooled Mortgage Loans subject hereto from time to time and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or person designated by such secured party for the purpose of
perfecting such security interest under applicable law, and (iv) notifications
to, 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 (as
applicable) of the Trustee for the purpose of perfecting such security interest
under applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a UCC financing statement substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of
Delaware promptly following the initial issuance of the Certificates, and the
Trustee shall, at the expense of the Depositor (to the extent reasonable),
prepare and file continuation statements with respect thereto, in each case
within six months prior to the fifth anniversary of the immediately preceding
filing. The Depositor shall cooperate in a reasonable manner with the Trustee in
the preparation and filing such continuation statements. This Section 2.01(c)
shall constitute notice to the Trustee pursuant to any requirements of the UCC
in effect in each applicable jurisdiction.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that each Pooled
Mortgage Loan Seller is obligated, at such Pooled Mortgage Loan Seller's
expense, pursuant to the related Pooled 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 thereby, (i) on or before the Closing Date, the
Mortgage Note for each Pooled Mortgage Loan so assigned, endorsed to the Trustee
as specified in clause (i) of the definition of "Mortgage File"(or,
alternatively, if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note as specified in clause
(i) of the definition of "Mortgage File") and (ii) on or before the respective
delivery dates therefor set forth in the related Pooled Mortgage Loan Purchase
Agreement, the remainder of the Mortgage File and any Additional Collateral
(other than Reserve Funds, which are to be transferred to the applicable Master
Servicer (or a Primary Servicer on its behalf), and, in the case of the Pooled
Mortgage Loans (other than the PMCF Pooled Mortgage Loans), other than the
originals of Letters of Credit, which are to be transferred to the applicable
Master Servicer (or a Primary Servicer on its behalf)) for each Original Pooled
Mortgage Loan acquired by the Depositor from such Pooled Mortgage Loan Seller.
Notwithstanding the preceding sentence, if the applicable Pooled Mortgage Loan
Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vii) and (ix)(A) of the definition of "Mortgage File",
with evidence of recording or filing (if applicable, and as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, then (subject to the obligation of such Pooled
Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be
made reasonably diligent efforts to obtain such document or instrument (with
such evidence) if it is not returned within a reasonable period after the date
when it was transmitted for recording and (2) deliver such document or
instrument to the Trustee or a Custodian appointed thereby (if such document or
instrument is not otherwise returned to the Trustee or such Custodian) promptly
upon such Pooled Mortgage Loan Seller's receipt thereof), so long as a copy of
such document or instrument, certified by such Pooled Mortgage Loan Seller or
title agent as being a copy of the document deposited for recording or filing
and (in the case of such clause (ii)) accompanied by an Officer's Certificate of
the applicable Pooled Mortgage Loan Seller or a statement from the title agent
to the effect that such original Mortgage has been sent to the appropriate
public recording official for recordation, has been delivered to the Trustee on
or before the respective delivery dates therefor set forth in the related Pooled
Mortgage Loan Purchase Agreement, the delivery requirements of the related
Pooled Mortgage Loan Purchase Agreement shall be deemed to have been satisfied
as to such missing item, and such missing item shall be deemed to have been
included in
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the related Mortgage File; and if the applicable Pooled Mortgage Loan Seller
cannot or does not so deliver, or cause to be delivered, as to any Pooled
Mortgage Loan (exclusive of a Non-Trust-Serviced Pooled Mortgage Loan), the
original of any of the documents and/or instruments referred to in clauses (iv)
and (ix)(B) of the definition of "Mortgage File", because such document or
instrument has been delivered for recording or filing, as the case may be, then
(subject to the obligation of such Pooled Mortgage Loan Seller to nonetheless
(1) from time to time make or cause to be made reasonably diligent efforts to
obtain such document or instrument (with such evidence) if it is not returned
within a reasonable period after the date when it was transmitted for recording
and (2) deliver such document or instrument to the Trustee or a Custodian
appointed thereby (if such document or instrument is not otherwise returned to
the Trustee or such Custodian) promptly upon such Pooled Mortgage Loan Seller's
receipt thereof), so long as a copy of such document or instrument, certified by
such Pooled Mortgage Loan Seller, a title agent or a recording or filing agent
as being a copy of the document deposited for recording or filing and
accompanied by an Officer's Certificate of such Pooled Mortgage Loan Seller or a
statement from the title agent that such document or instrument has been sent to
the appropriate public recording official for recordation (except that such
certification shall not be required if the Trustee is responsible for
recordation of such document or instrument under this Agreement and such Pooled
Mortgage Loan Seller has delivered the original unrecorded document or
instrument to the Trustee on or before the date that is 45 days following the
Closing Date), has been delivered to the Trustee on or before the respective
delivery dates therefor set forth in the related Pooled Mortgage Loan Purchase
Agreement, the delivery requirements of the related Pooled Mortgage Loan
Purchase Agreement shall be deemed to have been satisfied as to such missing
item, and such missing item shall be deemed to have been included in the related
Mortgage File. In addition, with respect to each Pooled Mortgage Loan (exclusive
of a Non-Trust-Serviced Pooled Mortgage Loan) under which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Depositor hereby represents and warrants that the related Pooled Mortgage Loan
Seller is contractually obligated to cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Trustee either the related Pooled Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder or,
alternatively but solely in the case of the PCF Pooled Mortgage Loans and the
PCFII Pooled Mortgage Loans, subject to the last paragraph in this section, the
right to receive the proceeds of any draw under such Letter of Credit (it being
acknowledged that the PCF Pooled Mortgage Loan Seller or the PCFII Pooled
Mortgage Loan Seller, as the case may be, shall not be required to change the
named beneficiary of such Letter of Credit and that the PCF Pooled Mortgage Loan
Seller or PCFII Pooled Mortgage Loan Seller, as the case may be, has agreed to
the provision acknowledged in the final paragraph of this subsection).
Furthermore, with respect to each Pooled Mortgage Loan, if any, as to which
there exists a secured creditor impaired property insurance policy or pollution
limited liability environmental impairment policy covering the related Mortgaged
Property, the related Pooled Mortgage Loan Seller is contractually obligated to
cause such policy, within a reasonable period following the Closing Date, to
inure to the benefit of the Trustee on behalf of the Certificateholders (if and
to the extent that it does not by its terms automatically run to the holder of
such Pooled Mortgage Loan). The Depositor shall deliver to the Trustee on or
before the Closing Date a fully executed counterpart of each Pooled Mortgage
Loan Purchase Agreement. With respect to a Non-Trust-Serviced Pooled Mortgage
Loan, the parties hereto acknowledge the provisions of the related Pooled
Mortgage Loan Purchase Agreement in which the related Pooled Mortgage Loan
Seller represents, warrants and covenants to the effect that the documents
described in clauses (ii) and (iii) of the definition of "Mortgage File" and
documents comparable to those described in clause (iv) of the definition of
"Mortgage File" have been delivered to the trustee or custodian under the
related Non-Trust Servicing Agreement, except to the extent that the absence of
such document does not violate the terms of the related Non-Trust Servicing
Agreement. In addition, with respect to a Non-Trust-Serviced Pooled Mortgage
Loan, the parties hereto acknowledge the provisions of the related Pooled
Mortgage Loan Purchase Agreement in which the related Pooled Mortgage Loan
Seller represents, warrants and covenants to the effect that any "Document
Defect" as such term is defined in the applicable Non-Trust Servicing Agreement
shall constitute a Document Defect under the related Pooled Mortgage Loan
Purchase Agreement. None of the Depositor, the Trustee, any Custodian, either
Master Servicer or any Special Servicer shall be liable for any failure by any
Pooled Mortgage Loan Seller to comply with the document delivery requirements of
the related Pooled Mortgage Loan Purchase Agreement.
In the case of the PCF Pooled Mortgage Loans and PCFII Pooled Mortgage
Loans that have Letters of Credit, the parties hereto acknowledge that under the
terms of the related Pooled Mortgage Loan Purchase Agreement, the
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original of such Letter of Credit shall be held by the related Primary Servicer
on behalf of the Master Servicer and at such time as the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan on behalf of the General Special
Servicer and the Trustee with a copy delivered to the Trustee in accordance with
the requirements of the definition of "Mortgage File" and that the PCF Pooled
Mortgage Loan Seller or PCFII Pooled Mortgage Loan Seller, as the case may be,
agreed in the related Pooled Mortgage Loan Purchase Agreement (a) that the
proceeds of such Letter of Credit belong to the Trustee on behalf of
Certificateholders, (b) to notify, on or before the Closing Date, the bank
issuing such Letter of Credit that such Letter of Credit and the proceeds
thereof belong to the Trustee, and to use reasonable efforts to obtain within 30
days (but in any event to obtain within 90 days) following the Closing Date, an
acknowledgment 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 PCF Pooled Mortgage Loan Seller or the PCFII Pooled Mortgage
Loan Seller, as the case may be, to assign to the Trust all rights in and to
such Letter of Credit under the applicable Pooled Mortgage Loan Purchase
Agreement, including the right and power to draw on such Letter of Credit and
that the PGI Primary Servicer has agreed in the related Primary Servicing
Agreement that any Letter of Credit so held by it shall be held in its capacity
as agent of the Trust and if there occurs any transfer of the Primary Servicer's
primary servicing rights and duties, including in connection with the related
Mortgage Loan becoming a Specially Serviced Mortgage Loan, then the PGI Primary
Servicer shall assign the applicable Letter of Credit to the Trust or at the
direction of the General Special Servicer to such party as the General Special
Servicer may instruct, in each case, at the expense of the PGI Primary Servicer
and the Primary Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment or caused by any action or failure to act
with respect to the Letter of Credit after the date the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan to the extent such action or failure
to act is not in accordance with the direction of the General Special Servicer,
so long as such direction is consistent with the terms of the related Mortgage
Loan Documents and the Letter of Credit. Upon a PCF Pooled Mortgage Loan or
PCFII Pooled Mortgage Loan becoming a Specially Serviced Mortgage Loan, the
Primary Servicer shall present or draw on the Letter of Credit solely as
directed by the General Special Servicer, and for the limited and sole purpose
of so presenting, drawing or taking other action on the Letter of Credit at the
direction of the General Special Servicer, shall act as the Special Servicer's
agent.
(e) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or, in the case of a Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, including via electronic means, if appropriate,
in or with the appropriate office for real property records or UCC Financing
Statements, as applicable, each assignment of Mortgage and assignment of
Assignment of Leases (except, in each case, with respect to any Mortgage or
Assignment of Leases that has been recorded in the name of MERS or its designee)
in favor of the Trustee referred to in clause (iv) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each assignment of UCC Financing Statement (except with respect to
any UCC Financing Statement that has been recorded in the name of MERS or its
designee) in favor of the Trustee referred to in clause (ix)(B) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf; provided, however, that (x) the Trustee shall only
submit such items for recording or filing to the extent that they are related to
Mortgage Loans for which PMCF is the Pooled Mortgage Loan Seller and (y) the
parties hereto acknowledge that the BSCMI Pooled Mortgage Loan Purchase
Agreement, the PCF Pooled Mortgage Loan Purchase Agreement, the PCFII Pooled
Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan Agreement and the
Nationwide Pooled Mortgage Loan Agreement require BSCMI, PCF, PCFII, WFB or
Nationwide, as the case may be, to itself submit or cause to be submitted, such
items for recording or filing to the extent that they are related to Mortgage
Loans for which such Pooled Mortgage Loan Seller is the applicable Pooled
Mortgage Loan Seller. Each such assignment shall reflect that it should be
returned by the public recording office to the Trustee (or, in the case of the
PCF Pooled Mortgage Loans and PCFII Pooled Mortgage Loans, to PCF or PCFII, as
the case may be, which has agreed in the related Pooled Mortgage Loan Purchase
Agreement, to deliver each such assignment to the Trustee (with a copy thereof
to the applicable Master Servicer) following receipt of such recorded assignment
or copy thereof if the original is retained by the public recording office)
following recording, and each such assignment of UCC Financing Statement shall
reflect that the file copy thereof or an appropriate receipt therefor, as
applicable, should be returned to the Trustee (or, in the case of
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the PCF Pooled Mortgage Loans and PCFII Pooled Mortgage Loans, to PCF or PCFII,
as the case may be, which has agreed in the related Pooled Mortgage Loan
Purchase Agreement, to deliver each such assignment to the Trustee (with a copy
thereof to the applicable Master Servicer) following receipt of such recorded
assignment or copy thereof if the original is retained by the public recording
office) following filing; provided that in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases a copy of the recorded original shall be obtained. At such
time as such assignments or verifications of electronic filing have been
returned to the Trustee, the Trustee shall, if so requested, forward a copy
thereof to the applicable Master Servicer either, to the extent that they are
related to Mortgage Loans for which PMCF or Nationwide is the Pooled Mortgage
Loan Seller, at the expense of the related Pooled Mortgage Loan Seller to the
extent provided in the separate agreement between the Trustee and such Pooled
Mortgage Loan Seller, or, to the extent that they are related to Mortgage Loans
for which BSCMI or WFB is the Pooled Mortgage Loan Seller, at the expense of the
related Pooled Mortgage Loan Seller as provided in the related Pooled Mortgage
Loan Purchase Agreement and, in any case, not at the expense of the Trust Fund.
If any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Trustee shall direct the
related Pooled Mortgage Loan Seller to prepare or cause to be prepared promptly,
pursuant to the related Pooled Mortgage Loan Purchase Agreement, a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee (in
connection with Mortgage Loans described in clause (x) above) or the applicable
Pooled Mortgage Loan Seller (in connection with Mortgage Loans described in
clause (y)) shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate. If the related Pooled Mortgage Loan Seller has been so
notified and has not prepared a substitute document or cured such defect, as the
case may be, within 60 days, the Trustee shall promptly notify the Master
Servicers, the Primary Servicers, the Special Servicers, the Rating Agencies and
the Controlling Class Representative. The Depositor and the Trustee hereby
acknowledge and agree that PMCF shall be responsible for paying, pursuant to a
separate agreement between such Pooled Mortgage Loan Seller and the Trustee and
not pursuant to this Agreement, an upfront fee to the Trustee in connection with
the above-referenced recording and filing of documents insofar as such recording
and filing relate to the Original Pooled Mortgage Loans sold by PMCF under the
PMCF Pooled Mortgage Loan Purchase Agreement; provided that PMCF shall not
actually record or file any such documents.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that each Pooled
Mortgage Loan Seller is contractually obligated, at such Pooled Mortgage Loan
Seller's expense, pursuant to the related Pooled Mortgage Loan Purchase
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the applicable Master Servicer, on or before the date that is 45
days after the Closing Date, in the case of the items in clause (i) below, and
20 days after the Closing Date, in the case of the items in clause (ii) below,
the following items (except to the extent that any of the following items are to
be retained by a Primary Servicer that will continue to act on behalf of the
applicable Master Servicer and except to the extent that any of the following
items relate to a Non-Trust-Serviced Pooled Mortgage Loan): (i) originals or
copies of all financial statements, appraisals, environmental/engineering
reports, transaction screens, seismic assessment reports, leases, rent rolls,
Insurance Policies and certificates, major space leases, legal opinions and
tenant estoppels and any other relevant documents relating to the origination
and servicing of any Mortgage Loan that are reasonably necessary for the ongoing
administration and/or servicing of the applicable Mortgage Loan in the
possession or under the control of such Pooled Mortgage Loan Seller that relate
to the Original Pooled Mortgage Loans transferred by it to the Depositor and, to
the extent that any original documents are not required to be a part of a
Mortgage File for any such Original Pooled Mortgage Loan, originals or copies of
all documents, certificates and opinions in the possession or under the control
of such Pooled Mortgage Loan Seller that were delivered by or on behalf of the
related Borrowers in connection with the origination of such Original Pooled
Mortgage Loans (provided that such Pooled Mortgage Loan Seller shall not be
required to deliver any attorney-client privileged communication, draft
documents or any documents or materials prepared by it or its Affiliates for
internal uses, including without limitation, credit committee briefs or
memoranda and other internal approval documents); and (ii) all unapplied Reserve
Funds and Escrow Payments in the possession or under the control of such Pooled
Mortgage Loan Seller that relate to the Original Pooled Mortgage Loans
transferred by such Pooled Mortgage Loan Seller to the Depositor. Each Master
Servicer (or a Primary Servicer or Sub-Servicer on its behalf) shall hold all
such documents, records and funds that it so receives on behalf of the Trustee
in trust for the benefit of the
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Certificateholders (and, insofar as they also relate to any Serviced Non-Pooled
Mortgage Loan, on behalf of and for the benefit of any and all related Serviced
Non-Pooled Mortgage Loan Noteholders).
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee,
by its execution and delivery of this Agreement, hereby accepts receipt on
behalf of the Trust, directly or through a Custodian on its behalf, of (i) the
Original Pooled Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents received by it that constitute portions
of the Mortgage Files, and that it holds and will hold the Original Pooled
Mortgage Loans and such other assets, together with any other Pooled Mortgage
Loans and assets subsequently delivered to it that are to be included in the
Trust Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. To the extent that the Mortgage File relates to a Pooled
Mortgage Loan that is part of a Serviced Mortgage Loan Group, the Trustee shall
also hold such Mortgage File in trust for the use and benefit of the related
Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer acknowledges
receipt (by it or a Primary Servicer on its behalf) of all of the original
Letters of Credit relating to the Serviced Pooled Mortgage Loans for which it is
the applicable Master Servicer (copies of which are part of the Mortgage File)
and agrees to hold (or cause a Primary Servicer on its behalf to hold ) such
Letters of Credit in trust for the benefit of the Trustee; provided, however,
that the applicable Master Servicer for the PMCF Pooled Mortgage Loans, for
which the applicable Pooled Mortgage Loan Seller is required to deliver the
originals of any Letters of Credit to the Trustee, the applicable Master
Servicer acknowledges receipt of copies of such Letters of Credit. In the case
of the PMCF Pooled Mortgage Loans, the Trustee shall deliver to the applicable
Master Servicer upon request any original Letters of Credit relating to the
Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer in
connection with the performance by such Master Servicer of its duties hereunder.
In connection with the foregoing, the Trustee hereby certifies to each of the
other parties hereto, each Pooled Mortgage Loan Seller and each Underwriter
that, as to each Pooled Mortgage Loan, except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II,
(i) all documents specified in clause (i) of the definition of "Mortgage File"
are in its possession or the possession of a Custodian on its behalf, and (ii)
the original Mortgage Note (or, if accompanied by a lost note affidavit, the
copy of such Mortgage Note) received by it or any Custodian with respect to such
Pooled Mortgage Loan has been reviewed by it or by such Custodian on its behalf
and (A) appears regular on its face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appears to have been executed (where appropriate) and (C) purports to relate
to such Pooled Mortgage Loan.
(b) On or about the 75th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), the Trustee or
a Custodian on its behalf shall review the documents delivered to it or such
Custodian with respect to each Original Pooled Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing to each
of the other parties hereto (substantially in the form of Exhibit N), the Pooled
Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders (in
each case, provided that the Trustee has received notice of the identity of and
notice address information for such Serviced Non-Pooled Mortgage Loan
Noteholder) and the Controlling Class Representative that, as to each Original
Pooled Mortgage Loan then subject to this Agreement (except as specifically
identified in any exception report annexed to such certification): (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a lost note affidavit and indemnity certifying that the original
of such Mortgage Note has been lost), the original or copy of documents
specified in clauses (ii), (iii), (iv) (except with respect to a
Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the
verification of the effective date with respect to a title policy or the date of
funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan
Schedule specifies that a material portion of the interest of the Borrower in
the related Mortgaged Property consists of a leasehold interest) and (xx)
(solely in the case of the Pooled Mortgage Loans secured by the Mortgaged
Properties identified on the Pooled Mortgage Loan Schedule as "In Town Suites
Portfolio", "Marriott Courtyard Solana Beach", "Hilton Garden Inn Glastonbury",
"Hampton Inn Suites", "Hampton Inn & Suites Bemidji", "Hawthorn Suites
Franklin",
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"Best Western Miramar", "Staybridge Suites - Cincinnati North", "Best Western
Potomac Xxxxx", "Holiday Inn Express - Chesapeake, VA", "Radisson Hotel -
Kenosha", "Best Western Porterville", "Courtyard Marriott Orlando", "Xxxxxx
Xxxxxxx San Diego", "Days Inn Mission Bay", "Days Inn Encinitas", "Fairfield Inn
& Suites, (Bethlehem, PA)", "Country Inn & Suites by Xxxxxxx - Tucson", "Country
Inn & Suites Xxxxxxx" and "Comfort Inn North Dartmouth") of the definition of
"Mortgage File" have been received by it or a Custodian on its behalf; (ii) if
such report is due more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents or
an appropriate receipt of recording/filing therefor); (iii) all documents
received by it or any Custodian with respect to such Pooled Mortgage Loan have
been reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Pooled Mortgage Loan; (iv) based on the
examinations referred to in Section 2.02(a) above and this Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Pooled
Mortgage Loan Schedule with respect to the items specified in clause (iii)(A)
and clause (vi) of the definition of "Pooled Mortgage Loan Schedule" accurately
reflects the information set forth in the related Mortgage File; and (v) the
Trustee on behalf of the Trust is shown as the owner of each Mortgage recorded
in the name of MERS or its designee. Every 90 days after such 45th day following
the Closing Date, until the earlier of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, and (ii) the date on
which all the affected Pooled Mortgage Loans are removed from the Trust Fund,
the Trustee or a Custodian on its behalf shall deliver electronically to the
Pooled Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders
and the Controlling Class Representative an update to the exception report
annexed to the certification described above substantially in the form of
Exhibit N, which update shall report any remaining outstanding exceptions with
respect to each Original Pooled Mortgage Loan. Such delivery shall be deemed to
constitute a certification of the substance of the matters set forth in the form
of such Exhibit N (except as set forth in such exception report). The applicable
Master Servicer shall provide the contact name, mailing address and e-mail
address of each Serviced Non-Pooled Mortgage Loan Noteholder to the Trustee to
the extent not previously provided thereto, provided that the applicable Master
Servicer has such information.
(c) If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled
Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by Section
2.03, the Trustee or a Custodian on its behalf shall review the documents
delivered to it or such Custodian with respect to such Replacement Pooled
Mortgage Loan, and the Trustee shall deliver a certification comparable to that
described in the prior paragraph, in respect of such Replacement Pooled Mortgage
Loan, on or about the 30th day following the related date of substitution (and,
if any exceptions are noted, every 90 days thereafter until the earlier of (i)
the date on which such exceptions are eliminated and all related
recording/filing has been completed, and (ii) the date on which such Replacement
Pooled Mortgage Loan is removed from the Trust Fund).
With respect to the documents described in clause (iii) of the
definition of "Mortgage File", absent actual knowledge to the contrary, the
Trustee may assume, for purposes of the certification(s) delivered in this
Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of
Leases.
With respect to the documents described in clause (ix) of the
definition of "Mortgage File", absent actual knowledge to the contrary or copies
of UCC Financing Statements delivered to the Trustee as part of the Mortgage
File indicating otherwise, the Trustee may assume, for purposes of the
certification(s) to be delivered pursuant to this Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan should include a copy of one
state-level UCC Financing Statement filed in the state of incorporation or
organization of the related Borrower for each Mortgaged Property (or with
respect to any Pooled Mortgage Loan that has two or more Borrowers, for each
related Borrower). To the extent appropriate under applicable law, the UCC
Financing Statements to be assigned to the Trust will be delivered on the new
national forms and in recordable form and will be filed in the state of
incorporation or organization as so indicated on the documents provided.
(d) None of the Depositor, the Certificate Administrator, the Trustee,
the Master Servicers, the Primary Servicer, any Subservicer, the Special
Servicers or any Custodian is under any duty or obligation to (i) determine
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whether any of the documents specified in clauses (iii), (iv)(B), (v), (vi),
(vii), (ix) and (xi) through (xviii) of the definition of "Mortgage File" exist
or are required to be delivered by the Pooled Mortgage Loan Sellers in respect
of any Pooled Mortgage Loan unless such item(s) are specified on the related
Mortgage File Checklist, or (ii) inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Pooled
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, except as expressly provided in Section 2.01(e), none of the
Depositor, the Trustee, the Master Servicers, the Primary Servicer, any
Subservicer, the Special Servicers or any Custodian shall have any
responsibility for determining whether the text of any assignment or endorsement
is in proper or recordable form, whether the requisite recording of any document
is in accordance with the requirements of any applicable jurisdiction, or
whether a blanket assignment is permitted in any applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the related Pooled Mortgage Loan
Seller as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i), (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled
Mortgage Loan), (viii) (without regard to the verification of the effective date
with respect to a title policy or the date of funding with respect to a title
commitment) (x) (if the Pooled Mortgage Loan Schedule specifies that a material
portion of the interest of the Borrower in the related Mortgaged Property
consists of a leasehold interest) and (xx) (solely in the case of the Pooled
Mortgage Loans secured by the Mortgaged Properties identified on the Pooled
Mortgage Loan Schedule as "In Town Suites Portfolio", "Marriott Courtyard Solana
Beach", "Hilton Garden Inn Glastonbury", "Hampton Inn Suites", "Hampton Inn &
Suites Bemidji", "Hawthorn Suites Franklin", "Best Western Miramar", "Staybridge
Suites - Cincinnati North", "Best Western Potomac Xxxxx", "Holiday Inn Express -
Chesapeake, VA", "Radisson Hotel - Kenosha", "Best Western Porterville",
"Courtyard Marriott Orlando", "Xxxxxx Xxxxxxx San Diego", "Days Inn Mission
Bay", "Days Inn Encinitas", "Fairfield Inn & Suites, (Bethlehem, PA)", "Country
Inn & Suites by Xxxxxxx - Tucson", "Country Inn & Suites Xxxxxxx" and "Comfort
Inn North Dartmouth") of the definition of "Mortgage File" have been received by
it or a Custodian on its behalf and such additional information as will be
necessary for delivering the certifications required by subsections (a) and (b)
above.
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage
Loans by the Pooled Mortgage Loan Sellers.
(a) If, in the process of reviewing the documents delivered or caused
to be delivered by the Pooled Mortgage Loan Sellers as contemplated by Section
2.01(d), the Trustee or any Custodian discovers that any document required to
have been delivered as contemplated by Section 2.01(d) has not been so
delivered, or discovers that any of the documents that were delivered has not
been properly executed, contains information that does not conform in any
material respect with the corresponding information set forth in the Pooled
Mortgage Loan Schedule, or is defective on its face (each, including, without
limitation, that a document is missing, a "Document Defect"), or if, at any
other time, the Trustee or any other party hereto discovers (without implying
that any such party has a duty to make or attempt to make such discovery) a
Document Defect in respect of any Pooled Mortgage Loan, the party discovering
such Document Defect shall promptly so notify each of the other parties hereto.
If any party hereto discovers (without implying that any such party has a duty
to make or attempt to make such discovery) or receives notice of a breach of any
representation or warranty relating to any Pooled Mortgage Loan set forth in or
made pursuant to Section 4(b) or 4(d) of any Pooled Mortgage Loan Purchase
Agreement (a "Breach"), such party shall promptly so notify each of the other
parties hereto. Upon the Trustee's discovery or receipt of notice that a
Document Defect or Breach exists with respect to any Pooled Mortgage Loan, the
Trustee shall notify the Controlling Class Representative, the Depositor and the
related Pooled Mortgage Loan Seller.
(b) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Pooled Mortgage Loan or its receipt of
notice from the Trustee or any other party to this Agreement of a Material
Document Defect or Material Breach with respect to any Pooled Mortgage Loan, the
applicable Master Servicer shall (and the applicable Special Servicer may)
notify the related Pooled Mortgage Loan Seller in writing of such Material
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Document Defect or Material Breach, as the case may be, and direct such Pooled
Mortgage Loan Seller that it must, not later than 90 days from the receipt by
such Pooled Mortgage Loan Seller of such notice or 90 days from the Pooled
Mortgage Loan Seller's discovery of the subject Material Document Defect or
Material Breach (or, if such Material Breach or Material Document Defect, as the
case may be, relates to whether such Pooled Mortgage Loan is or, as of the
Closing Date (or, in the case of a Replacement Pooled Mortgage Loan, as of the
related date of substitution), was a Qualified Mortgage, and provided that such
Pooled Mortgage Loan Seller discovered or received prompt written notice
thereof, within 90 days after any earlier discovery by the Pooled Mortgage Loan
Seller or any party to this Agreement of such Material Breach or Material
Document Defect, as the case may be) (such 90-day period, in any case, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Pooled Mortgage Loan (as, if and to the extent required by the related
Pooled Mortgage Loan Purchase Agreement), at the applicable Purchase Price;
provided that if such Pooled Mortgage Loan Seller certifies to the Trustee in
writing (i) that such Material Document Defect or Material Breach, as the case
may be, does not relate to whether the affected Pooled Mortgage Loan is or, as
of the Closing Date (or, in the case of a Replacement Pooled Mortgage Loan, as
of the related date of substitution), was a Qualified Mortgage, (ii) that such
Material Document Defect or Material Breach, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
such Pooled Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Material Document Defect or Material Breach, as the case may
be, during the applicable Initial Resolution Period, and (iv) that such Pooled
Mortgage Loan Seller anticipates that such Material Document Defect or Material
Breach, as the case may be, will be cured within an additional 90-day period
(such additional 90-day period, the "Resolution Extension Period") (a copy of
which certification shall be delivered by the Trustee to the applicable Master
Servicer, the applicable Primary Servicer (if any), the applicable Special
Servicer and the Controlling Class Representative), then such Pooled Mortgage
Loan Seller shall have an additional period equal to any such applicable
Resolution Extension Period to complete such correction or cure (or, upon
failure to complete such correction or cure, to repurchase the affected Pooled
Mortgage Loan); and provided, further, that, in lieu of repurchasing the
affected Pooled Mortgage Loan as contemplated above (but, in any event, no later
than such repurchase would have to have been completed), such Pooled Mortgage
Loan Seller shall be permitted, during the three-month period following the
Startup Day for the REMIC Pool that holds the affected Pooled Mortgage Loan (or
during the two-year period following such Startup Day if the affected Pooled
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)), to
replace the affected Pooled Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to any other applicable terms and conditions of the
related Pooled Mortgage Loan Purchase Agreement and this Agreement. The parties
hereto agree that delivery by the Trustee (or a Custodian on its behalf) of a
certification or schedule of exceptions to a Pooled Mortgage Loan Seller shall
not in and of itself constitute delivery of notice of any Material Document
Defect or knowledge of such Pooled Mortgage Loan Seller of any Material Document
Defect therein. If any Pooled Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the applicable Master Servicer shall
designate its Collection Account as the account to which funds in the amount of
the applicable Purchase Price or Substitution Shortfall Amount (as the case may
be) are to be wired, and the applicable Master Servicer shall promptly notify
the Trustee and the Certificate Administrator when such deposit is made. Any
such repurchase or replacement of a Pooled Mortgage Loan shall be on a whole
loan, servicing released basis. Notwithstanding this Section 2.03(b), the
absence from the Mortgage File, (i) on the Closing Date of the Mortgage Note (or
a lost note affidavit and indemnity with a copy of the Mortgage Note) and (ii)
by the first anniversary of the Closing Date, of originals or copies of the
following documents (without the presence of any factor that reasonably
mitigates such absence, non-conformity or irregularity) or of any Specially
Designated Mortgage Loan Document shall be conclusively presumed to be a
Material Document Defect and shall obligate the party discovering such to give
the Trustee prompt notice, whereupon the Trustee shall notify the applicable
Pooled Mortgage Loan Seller to cure such Material Document Defect, or, failing
that, repurchase the related Pooled Mortgage Loan or REO Mortgage Loan, all in
accordance with the procedures set forth herein: (A) the Mortgage and any
separate Assignment of Leases as described by clauses (ii) and (iii) of the
definition of "Mortgage File"; (B) the title insurance policy as described in
clause (viii) of the definition of "Mortgage File" (or, if the policy has not
yet been issued, an original or copy of a written commitment "marked-up" at the
closing of such Mortgage Loan, interim binder or the pro forma title insurance
policy, in each case evidencing a binding commitment to issue such policy); or
(C) except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, the
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assignment of Mortgage (and any separate Assignment of Leases) as described by
clause (iv) of the definition of "Mortgage File".
The remedies provided for in this Section 2.03(b) with respect to any
Material Document Defect or Material Breach with respect to any Pooled Mortgage
Loan shall apply to the related REO Property.
If (x) a Defective Pooled Mortgage Loan is to be repurchased or
replaced as described above, (y) such Defective Pooled Mortgage Loan is part of
a Cross-Collateralized Group 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 the other Pooled Mortgage Loan(s) that are a part of such
Crossed-Collateralized Group (the "Other Crossed 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 Other Crossed Loan for purposes of the above
provisions, and the related Pooled Mortgage Loan Seller shall be obligated to
repurchase or replace each such Other Crossed Loan in accordance with the
provisions above unless, in the case of such Breach or Document Defect:
(A) the related Pooled Mortgage Loan Seller (at its expense)
delivers or causes to be delivered to the Trustee an Opinion of Counsel to
the effect that such Pooled Mortgage Loan Seller's repurchase of only those
Pooled Mortgage Loans as to which a Material Breach has actually occurred
without regard to the provisions of this paragraph (the "Affected Loan(s)")
and the operation of the remaining provisions of this Section 2.03(b) will
not result in an Adverse REMIC Event or an Adverse Grantor Trust Event
hereunder; and
(B) both of the following conditions would be satisfied if the
related Pooled Mortgage Loan Seller were to repurchase or replace only the
Affected Loans and not the Other Crossed Loans:
(i) the debt service coverage ratio for such Other Crossed
Loan (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than
the least of (A) 0.10x below the debt service coverage ratio for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix B to the Prospectus Supplement, (B) the debt service
coverage ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) for the four preceding calendar quarters preceding
the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) at the time of repurchase or replacement and (C)
75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the related Pooled Mortgage Loan Seller to
cause to be delivered, to the applicable Master Servicer an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of the related Pooled Mortgage Loan Seller if the scope and cost of the
Appraisal is approved by the related Pooled Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
With respect to any Defective Pooled Mortgage Loan that forms a part
of a Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the related Pooled Mortgage Loan Seller and the
Trustee, as successor to the Depositor, are bound by an agreement (set forth in
the related Pooled 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 Pooled
Mortgage Loans, including with respect to the Trustee, the Primary Collateral
securing the Affected Loan(s) still held by the Trustee, so long as such
exercise does not impair the ability of the other
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party to exercise its remedies against its Primary Collateral. If the exercise
of remedies by one such party would impair the ability of the other such party
to exercise its remedies with respect to the Primary Collateral securing the
Affected Loan or the Other Crossed Loans, as the case may be, held by the other
such party, then both parties have agreed to forbear from exercising such
remedies unless and until the Mortgage Loan Documents evidencing and securing
the relevant Pooled Mortgage Loans can be modified in a manner that complies
with the applicable Pooled 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 any of the Cross-Collateralized Loans
shall be allocated between such Pooled Mortgage Loans in accordance with the
Mortgage Loan Documents, or otherwise on a pro rata basis based upon their
outstanding Stated Principal Balances. All other terms of the Pooled Mortgage
Loans shall remain in full force and effect, without any modification thereof.
The Borrowers set forth on Schedule V 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 Pooled Mortgage Loan without the related
Borrower's consent.
To the extent necessary and appropriate, the Trustee shall execute
(or, subject to Section 3.01(b) and Section 3.10, provide the applicable Master
Servicer with a limited power of attorney that enables the applicable Master
Servicer to execute) the modification of the Mortgage Loan Documents that
complies with the applicable Pooled Mortgage Loan Purchase Agreement to remove
the threat of impairment of the ability of the Pooled Mortgage Loan Seller or
the Trust Fund to exercise its remedies with respect to the Primary Collateral
securing the Pooled Mortgage Loan(s) held by such party resulting from the
exercise of remedies by the other such party; provided that the Trustee shall
not be liable for any misuse of any such power of attorney by a Master Servicer.
The applicable Master Servicer shall advance all costs and expenses incurred by
the Trustee and such Master Servicer with respect to any Cross-Collateralized
Group pursuant to this paragraph, and such advances and interest thereon shall
(i) constitute and be reimbursable as Servicing Advances and (ii) be included in
the calculation of Purchase Price for the Pooled Mortgage Loan(s) to be
repurchased or replaced. The applicable Master Servicer shall not be liable to
any Certificateholder or any other party hereto if a modification of the
Mortgage Loan Documents described above cannot be effected for any reason beyond
the control of such Master Servicer.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the Special Servicer and/or the Trustee pursuant to
this Section 2.03(b), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(c) Whenever one or more Replacement Pooled Mortgage Loans are
substituted for a Defective Pooled Mortgage Loan by a Pooled Mortgage Loan
Seller as contemplated by this Section 2.03, the applicable Master Servicer
shall direct the party effecting the substitution to deliver to the Trustee the
related Mortgage File and a certification to the effect that such Replacement
Pooled Mortgage Loan satisfies or such Replacement Pooled Mortgage Loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan". No mortgage loan may be substituted for a
Defective Pooled Mortgage Loan as contemplated by this Section 2.03 if the
Pooled Mortgage Loan to be replaced was itself a Replacement Pooled Mortgage
Loan, in which case, absent a cure of the relevant Material Breach or Material
Document Defect, the affected Pooled Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Pooled Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Pooled Mortgage Loan (if any) after its respective Cut-off Date and on
or prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Pooled Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each corresponding Deleted Pooled Mortgage Loan (if any) after
the related date of substitution, shall not be part of the Trust Fund and are to
be remitted by the applicable Master Servicer to the party effecting the related
substitution promptly following receipt.
If any Pooled Mortgage Loan is to be repurchased or replaced by a
Pooled Mortgage Loan Seller as contemplated by this Section 2.03, the applicable
Master Servicer shall direct such party to amend the Pooled Mortgage Loan
Schedule to reflect the removal of any Deleted Pooled Mortgage Loan and, if
applicable, the substitution of the related Replacement Pooled Mortgage Loan(s);
and, upon its receipt of such amended Pooled Mortgage Loan Schedule, the
applicable Master Servicer shall deliver or cause the delivery of such amended
Pooled Mortgage Loan Schedule to the
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other parties hereto. Upon any substitution of one or more Replacement Pooled
Mortgage Loans for a Deleted Pooled Mortgage Loan, such Replacement Pooled
Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms
of this Agreement in all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the Special Servicer and/or the Trustee pursuant to
this Section 2.03(c), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(d) Upon receipt of an Officer's Certificate from the applicable
Master Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Pooled Mortgage Loan
repurchased or replaced by the related Pooled Mortgage Loan Seller as
contemplated by this Section 2.03 has been deposited in such Master Servicer's
Collection Account, and further, if applicable, upon receipt of the Mortgage
File for each Replacement Pooled Mortgage Loan (if any) to be substituted for a
Deleted Pooled Mortgage Loan, together with any certifications and/or opinions
required pursuant to Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Pooled Mortgage Loan to the related Pooled Mortgage Loan
Seller or its designee and (ii) execute and deliver such instruments of release,
transfer and/or assignment, in each case without recourse, as shall be provided
to it and are reasonably necessary to vest in the party effecting the
repurchase/substitution or its designee the ownership of the Deleted Pooled
Mortgage Loan, and the applicable Master Servicer shall notify the affected
Borrowers of the transfers of the Deleted Pooled Mortgage Loan(s) and any
Replacement Pooled Mortgage Loan(s). If the Mortgage related to the Deleted
Pooled Mortgage Loan has been recorded in the name of MERS or its designee, the
related Master Servicer shall take all necessary action to reflect the release
of such Mortgage on the records of MERS. In connection with any such repurchase
or substitution by the related Pooled Mortgage Loan Seller, each of the Master
Servicers and the Special Servicers shall deliver to the party effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or such Special
Servicer, as the case may be, with respect to the Deleted Pooled Mortgage Loan,
in each case at the expense of the party effecting the repurchase/substitution.
The reasonable "out-of-pocket" costs and expenses, including reasonable
attorneys' fees and expenses, incurred by a Master Servicer, a Special Servicer
and/or the Trustee pursuant to this Section 2.03(d), to the extent not collected
from the related Pooled Mortgage Loan Seller, shall be reimbursable to each of
them as Servicing Advances in respect of the affected Pooled Mortgage Loan.
(e) The related Pooled Mortgage Loan Purchase Agreement provides the
sole remedies available to the Certificateholders, or the Trustee on their
behalf, respecting any Document Defect or Breach with respect to any Pooled
Mortgage Loan. If, in connection with any Material Document Defect or Material
Breach, the related Pooled Mortgage Loan Seller defaults on its obligations to
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects or to repurchase or replace the affected Pooled Mortgage
Loan as contemplated by this Section 2.03, then the applicable Master Servicer
shall (and the applicable Special Servicer may) promptly notify the Trustee and
the Controlling Class Representative, and the Trustee shall notify the
Certificateholders. Thereafter, the Trustee shall (and the applicable Special
Servicer may in its own name, or, as provided in Section 3.01(b) below, in the
name of the Trustee) take such actions on behalf of the Trust with respect to
the enforcement of such repurchase/substitution obligations, including the
institution and prosecution of appropriate legal proceedings, as the Trustee
(or, if applicable, the applicable Special Servicer) shall determine are in the
best interests of the Certificateholders (taken as a collective whole). Any and
all reasonable "out-of-pocket" costs and expenses incurred by the applicable
Master Servicer, the Trustee and/or the applicable Special Servicer pursuant to
this Section 2.03(e), including, reasonable attorney's fees and expenses, to the
extent not collected from the related Pooled Mortgage Loan Seller, shall
constitute Servicing Advances in respect of the affected Pooled Mortgage Loan.
(f) The Trustee shall not consent to the assignment of the related
Pooled Mortgage Loan Seller's obligations under any Pooled Mortgage Loan
Purchase Agreement without written confirmation to the Trustee from each Rating
Agency to the effect that such assignment would not, in and of itself, result in
an Adverse Rating Event with respect to any Class of Rated Certificates.
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SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Depositor, is
likely to affect materially and adversely the ability of the Depositor to
perform its obligations under this Agreement.
(iii) The Depositor has the full corporate power and authority to
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and
has duly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by each of the other parties
hereto, constitutes a valid, legal and binding obligation of the Depositor,
enforceable against the Depositor in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(iv) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect the ability of the Depositor
to perform its obligations under this Agreement.
(v) Immediately prior to the transfer of the Original Pooled
Mortgage Loans to the Trustee for the benefit of the Certificateholders
pursuant to this Agreement, the Depositor had such right, title and
interest in and to each Original Pooled Mortgage Loan as was transferred to
it by the related Pooled Mortgage Loan Seller pursuant to the related
Pooled Mortgage Loan Purchase Agreement. The Depositor has not transferred
any of its right, title and interest in and to the Original Pooled Mortgage
Loans to any Person other than the Trustee.
(vi) The Depositor is transferring all of its right, title and
interest in and to the Original Pooled Mortgage Loans to the Trustee for
the benefit of the Certificateholders free and clear of any and all liens,
pledges, charges, security interests and other encumbrances created by or
through the Depositor.
(vii) Except for any actions that are the express responsibility
of another party hereunder or under any Pooled Mortgage Loan Purchase
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Original Pooled
Mortgage Loans by the Depositor to the Trustee.
(viii) No consent, approval, license, authorization or order of
any state or federal court or governmental agency or body is required for
the consummation by the Depositor of the transactions contemplated herein,
except for (A) those consents, approvals, licenses, authorizations or
orders that previously have been obtained or where the lack of such
consent, approval, license, authorization or order would not have a
material adverse effect on the ability of the Depositor to perform its
obligations under this Agreement and (B) those filings and recordings of
the Depositor and assignments thereof that are contemplated by this
Agreement to be completed after the Closing Date.
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(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice thereof to
the other parties hereto.
SECTION 2.05. Representations and Warranties of PAR as a Master
Servicer.
(a) PAR as a Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) Such Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
such Master Servicer is in compliance with the laws of each State in which
any related Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan for which it is the Master
Servicer hereunder and to perform its obligations under this Agreement.
(ii) Such Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate such
Master Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument to which it is a party or by which it is bound, which
default or breach, in the good faith and reasonable judgment of such Master
Servicer, is likely to affect materially and adversely the ability of such
Master Servicer to perform its obligations under this Agreement.
(iii) Such Master Servicer has the full power and authority to
enter into and consummate all transactions involving such Master Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of such Master Servicer, enforceable against such
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
such Master Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely the ability of such Master Servicer to
perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, and such Master Servicer possesses all licenses and authorizations
necessary to perform its obligations under this Agreement, except for those
consents, approvals, licenses, authorizations or orders that previously
have been obtained or where the lack of such consent, approval, license,
authorization or order would not have a material adverse effect on the
ability of such Master Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer that, if
determined adversely to such Master Servicer, would prohibit such Master
Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment,
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is likely to materially and adversely affect the ability of such Master
Servicer to perform its obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of PAR as a Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor to PAR as a Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.06. Representations and Warranties of WFB as a Master
Servicer.
(a) WFB as a Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) Such Master Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, and such Master Servicer is in compliance with the laws of
each State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan for which it
is the Master Servicer hereunder and to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not
adversely affect such Master Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement.
(ii) Such Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate such
Master Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument to which it is a party or by which it is bound, which
default or breach, in the good faith and reasonable judgment of such Master
Servicer, is likely to affect materially and adversely the ability of such
Master Servicer to perform its obligations under this Agreement.
(iii) Such Master Servicer has the full power and authority to
enter into and consummate all transactions involving such Master Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of such Master Servicer, enforceable against such
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
such Master Servicer's good faith and reasonable judgment, is likely to
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affect materially and adversely the ability of such Master Servicer to
perform its obligations under this Agreement.
(vi) No consent, approval, license, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, except for those consents, approvals, licenses, authorizations or
orders that previously have been obtained or where the lack of such
consent, approval, license, authorization or order would not have a
material adverse effect on the ability of such Master Servicer 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.
(vii) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer that, if
determined adversely to such Master Servicer, would prohibit such Master
Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of WFB as a Master Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor to WFB as a Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the General Special
Servicer.
(a) The General Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The General Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, the General Special Servicer is in compliance with the laws of
each State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and to perform
its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the General Special Servicer's
ability to perform its obligations under this Agreement.
(ii) The General Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
General Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is bound,
which default or breach, in the good faith and reasonable judgment of the
General Special Servicer, is likely to affect materially and adversely the
ability of the General Special Servicer to perform its obligations under
this Agreement.
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(iii) The General Special Servicer has the full power and
authority to enter into and consummate all transactions involving the
General Special Servicer contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the General Special Servicer, enforceable against
the General Special Servicer in accordance with the terms hereof, subject
to (A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The General Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the General Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
General Special Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, license, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by the General Special Servicer of the transactions
contemplated herein, except for those consents, approvals, licenses,
authorizations or orders that previously have been obtained or where the
lack of such consent, approval, license, authorization or order would not
have a material adverse effect on the ability of the General Special
Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General
Special Servicer's knowledge, threatened against the General Special
Servicer that, if determined adversely to the General Special Servicer,
would prohibit the General Special Servicer from entering into this
Agreement or that, in the General Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the General Special Servicer to perform its obligations under
this Agreement.
(viii) The General Special Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of the General Special Servicer
set forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor General Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
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SECTION 2.08. Representations and Warranties of the Loan Specific
Special Servicers.
(a) Each Loan Specific Special Servicer hereby represents and warrants
to each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) Such Loan Specific Special Servicer is duly organized,
validly existing and in good standing as a Delaware corporation, and such
Loan Specific Special Servicer is in compliance with the laws of each State
in which any related Mortgaged Property is located to the extent necessary
to ensure the enforceability of the related Mortgage Loan Group and to
perform its obligations under this Agreement, except where the failure to
so qualify or comply would not adversely affect such Loan Specific Special
Servicer's ability to perform its obligations under this Agreement.
(ii) Such Loan Specific Special Servicer's execution and delivery
of, performance under and compliance with this Agreement will not violate
such Loan Specific Special Servicer's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a party or
by which it is bound, which default or breach, in the good faith and
reasonable judgment of such Loan Specific Special Servicer, is likely to
affect materially and adversely the ability of such Loan Specific Special
Servicer to perform its obligations under this Agreement.
(iii) Such Loan Specific Special Servicer has the requisite power
and authority to enter into and consummate all transactions involving such
Loan Specific Special Servicer contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of such Loan Specific Special Servicer, enforceable
against such Loan Specific Special Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) Such Loan Specific Special Servicer is not in violation of,
and its execution and delivery of, performance under and compliance with
the terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory authority,
which violation, in such Loan Specific Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely the
ability of such Loan Specific Special Servicer to perform its obligations
under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by such Loan Specific Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, license, authorization or order would not have a
material adverse effect on the ability of such Loan Specific Special
Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of such Loan
Specific Special Servicer's knowledge, threatened against such Loan
Specific Special Servicer that, if determined adversely to such Loan
Specific Special Servicer, would prohibit such Loan Specific Special
Servicer from entering into this Agreement or that, in such Loan Specific
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of such Loan Specific Special
Servicer to perform its obligations under this Agreement.
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(viii) Such Loan Specific Special Servicer has errors and
omissions insurance in the amounts and the coverage required by Section
3.07(d).
(b) The representations and warranties of each Loan Specific Special
Servicer set forth in Section 2.08(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor Loan Specific Special Servicer shall be deemed to
have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.09. Representations and Warranties of the Certificate
Administrator.
(a) The Certificate Administrator hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Certificate Administrator is duly organized, validly
existing and in good standing as a national banking association under the
laws of the United States and possesses all licenses and authorizations
necessary to the performance of its obligations under this Agreement.
(ii) The Certificate Administrator's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Certificate Administrator's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default or breach, in the good faith and reasonable
judgment of the Certificate Administrator, is likely to affect materially
and adversely the ability of the Certificate Administrator to perform its
obligations under this Agreement.
(iii) The Certificate Administrator has the requisite power and
authority to enter into and consummate all transactions involving the
Certificate Administrator contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Certificate Administrator, enforceable
against the Certificate Administrator in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Certificate Administrator is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Certificate Administrator's reasonable judgment, is
likely to affect materially and adversely the ability of the Certificate
Administrator to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Certificate Administrator of the transactions
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contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the Certificate
Administrator's knowledge, threatened against the Certificate Administrator
that, if determined adversely to the Certificate Administrator, would
prohibit the Certificate Administrator from entering into this Agreement or
that, in the Certificate Administrator's reasonable judgment, is likely to
materially and adversely affect the ability of the Certificate
Administrator to perform its obligations under this Agreement.
(viii) The Certificate Administrator is eligible to act in such
capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Certificate
Administrator set forth in Section 2.09(a) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor Certificate Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.09(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.09(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.10. Representations and Warranties of the Tax Administrator.
(a) The Tax Administrator hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Tax Administrator is duly organized, validly existing and
in good standing as a national banking association under the laws of the
United States and possesses all licenses and authorizations necessary to
the performance of its obligations under this Agreement.
(ii) The Tax Administrator's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Tax Administrator's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a material breach of, any material agreement
or other material instrument to which it is a party or by which it is
bound, which default or breach, in the reasonable judgment of the Tax
Administrator, is likely to affect materially and adversely the ability of
the Tax Administrator to perform its obligations under this Agreement.
(iii) The Tax Administrator has the requisite power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes the valid, legal
and binding obligation of the Tax Administrator, enforceable against the
Tax Administrator in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally and
the rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Tax Administrator is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or
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decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Tax Administrator's reasonable judgment, is likely to
affect materially and adversely the ability of the Tax Administrator to
perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Tax Administrator of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the Tax
Administrator's knowledge, threatened against the Tax Administrator that,
if determined adversely to the Tax Administrator, would prohibit the Tax
Administrator from entering into this Agreement or that, in the Tax
Administrator's reasonable judgment, is likely to materially and adversely
affect the ability of the Tax Administrator to perform its obligations
under this Agreement.
(viii) The Tax Administrator is eligible to act in such capacity
hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Tax Administrator set
forth in Section 2.10(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
(c) Any successor to the Tax Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.10(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.10(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.11. Representations, Warranties and Covenants of the
Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with,
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is duly organized, validly existing and in good
standing as a national banking association under the laws of the United
States and is, shall be or, if necessary, shall appoint a co-trustee that
is, in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan (insofar as such enforceability is dependent upon
compliance by the Trustee with such laws) and to perform its obligations
under this Agreement and possesses all licenses and authorizations
necessary to the performance of its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under
and compliance with this Agreement, will not violate the Trustee's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee is likely
to affect materially and adversely the ability of the Trustee to perform
its obligations under this Agreement.
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally and, in
particular, the rights of creditors of national banking associations, and
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(vii) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or that, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Trustee to perform its
obligations under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations, warranties and covenants of the Trustee set
forth in Section 2.11(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 2.11(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.11(a)(i) to
accurately reflect such successor's jurisdiction of organization and whether it
is a corporation, partnership, bank, association or other type of organization.
SECTION 2.12. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain Matters
Involving REMIC I.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Pooled Mortgage Loans that are from time to time subject to this
Agreement, together with (A) all payments under and proceeds of such Pooled
Mortgage Loans received after the Closing Date or, in the case of any such
Pooled Mortgage Loan that is a Replacement Pooled Mortgage Loan, after the
related date of substitution (other than scheduled payments of interest and
principal due on or before the respective Cut-off Dates for such Pooled Mortgage
Loans or, in the case of any such Pooled Mortgage Loan that is a Replacement
Pooled Mortgage Loan, on or before the related date of substitution, and
exclusive of any such amounts that constitute Excess Servicing Fees and/or
Post-ARD Additional Interest), and (B) all rights of the holder of such Pooled
Mortgage Loans under the related Mortgage Loan Documents and in and to any
related Additional Collateral; (ii) any REO Property acquired in respect of any
Pooled Mortgage Loan (or, in the case of any REO Property related to a
Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the holder
of the related Pooled Mortgage Loan in such REO Property); (iii) such funds and
assets as from time to time are deposited in the Collection Accounts (but not in
any Companion Note Custodial Account or any Subordinate Note Custodial Account),
the Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account and, if established (but,
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in the case of any such account established with respect to a Serviced Mortgage
Loan Group, subject to the rights of the Serviced Non-Pooled Mortgage Loan
Noteholders), the REO Accounts (exclusive of any such amounts that constitute
Excess Servicing Fees and/or Post-ARD Additional Interest); and (iv) the rights
of the Depositor under Sections 2, 3, 4 (other than Section 4(c)) and 5 (and, to
the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and
18) of each Pooled Mortgage Loan Purchase Agreement. The Closing Date is hereby
designated as the "Startup Day" of REMIC I within the meaning of Section
860G(a)(9) of the Code.
(b) Concurrently with the assignment to the Trustee of the Original
Pooled Mortgage Loans and certain related assets, pursuant to Section 2.01(b),
and in exchange therefor, the REMIC I Regular Interests and the REMIC I Residual
Interest shall be issued. A single separate REMIC I Regular Interest shall be
issued with respect to each Original Pooled Mortgage Loan. For purposes of this
Agreement each REMIC I Regular Interest shall relate to the Original Pooled
Mortgage Loan in respect of which it was issued, to each Replacement Pooled
Mortgage Loan (if any) substituted for such Original Pooled Mortgage Loan and to
each REO Pooled Mortgage Loan deemed outstanding with respect to any REO
Property acquired in respect of such Original Pooled Mortgage Loan or any such
Replacement Pooled Mortgage Loan (or, in the case of any REO Property related to
a Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the holder
of the related Pooled Mortgage Loan in any related REO Property). Neither the
REMIC I Residual Interest nor any of the REMIC I Regular Interests shall be
certificated. The REMIC I Regular Interests and the REMIC I Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I (within the meaning of Treasury
Regulations Section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Pooled Mortgage Loan set forth in
the Pooled Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance
of the related Original Pooled Mortgage Loan (as specified in the Pooled
Mortgage Loan Schedule). On each Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC I Regular
Interest on such Distribution Date pursuant to Section 4.01(j) and shall be
further adjusted in the manner and to the extent provided in Section 4.04(c).
Except as provided in the preceding sentence and except to the extent of the
recovery of amounts previously allocated as a Realized Loss as a result of the
reimbursement from principal collections of Nonrecoverable Advances, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC II in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously deemed allocated to a REMIC I Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
(f) The per annum rate at which each REMIC I Regular Interest shall
accrue interest during each Interest Accrual Period is herein referred to as its
"REMIC I Remittance Rate". The REMIC I Remittance Rate in respect of any
particular REMIC I Regular Interest, for any Interest Accrual Period, shall
equal: (A) if the related Original Pooled Mortgage Loan is or was, as the case
may be, a 30/360 Mortgage Loan, the related Net Mortgage Rate then in effect
(including as a result of any step-up provision) for the related Original Pooled
Mortgage Loan under the original terms of such Pooled Mortgage loan in effect as
of the Closing Date (without regard to any modifications, extensions, waivers or
amendments of such Pooled Mortgage Loan subsequent to the Closing Date, whether
entered into by the applicable Master Servicer or the applicable Special
Servicer or in connection with any bankruptcy, insolvency or other similar
proceeding involving the related Borrower) and (B) if the related Original
Pooled Mortgage Loan is or was, as the case may be, an Actual/360 Mortgage Loan,
a fraction (expressed as a percentage), the numerator of which is the product of
12 times the Adjusted Actual/360 Accrued Interest Amount with respect to such
REMIC I Regular Interest for such Interest
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Accrual Period, and the denominator of which is the Uncertificated Principal
Balance of such REMIC I Regular Interest immediately prior to the Distribution
Date that corresponds to such Interest Accrual Period.
The "Adjusted Actual/360 Accrued Interest Amount" with respect to any
REMIC I Regular Interest referred to in clause (B) of the second sentence of the
prior paragraph, for any Interest Accrual Period, is an amount of interest equal
to the product of (a) the Net Mortgage Rate then in effect (including as a
result of any step-up provision) for the related Pooled Mortgage Loan under the
original terms of such Pooled Mortgage loan in effect as of the Closing Date
(without regard to any modifications, extensions, waivers or amendments of such
Pooled Mortgage Loan subsequent to the Closing Date, whether entered into by the
applicable Master Servicer or the applicable Special Servicer or in connection
with any bankruptcy, insolvency or other similar proceeding involving the
related Borrower), multiplied by (b) a fraction, the numerator of which is the
number of days in such Interest Accrual Period, and the denominator of which is
360, multiplied by (c) the Uncertificated Principal Balance of such REMIC I
Regular Interest immediately prior to the Distribution Date that corresponds to
such Interest Accrual Period; provided that, if the subject Interest Accrual
Period occurs during (x) December of 2006 or December of any year thereafter
that does not immediately precede a leap year or (y) January of 2007 or January
of any year thereafter, then the amount of interest calculated with respect to
the subject REMIC I Regular Interest pursuant to this definition for such
Interest Accrual Period without regard to this proviso shall be decreased by the
Interest Reserve Amount, if any (and the fraction described in clause (B) of the
second sentence of the preceding paragraph shall be adjusted accordingly), with
respect to the related Pooled Mortgage Loan (or any successor REO Pooled
Mortgage Loan with respect thereto) transferred, in accordance with Section
3.04(c), from the Distribution Account to the Interest Reserve Account on the
Master Servicer Remittance Date that occurs immediately following the end of
such Interest Accrual Period; and provided, further, that, if the subject
Interest Accrual Period occurs during February of 2007 or February of any year
thereafter (or any December or January preceding the month of the Final
Distribution Date), then the amount of interest calculated with respect to the
subject REMIC I Regular Interest pursuant to this definition for such Interest
Accrual Period without regard to this proviso shall be increased by the Interest
Reserve Amount(s), if any (and the fraction described in clause (B) of the
second sentence of the preceding paragraph shall be adjusted accordingly), with
respect to the related Pooled Mortgage Loan (or any successor REO Pooled
Mortgage Loan with respect thereto) transferred, in accordance with Section
3.05(c), from the Interest Reserve Account to the Distribution Account on the
Master Servicer Remittance Date that occurs immediately following the end of
such Interest Accrual Period.
(g) Each REMIC I Regular Interest shall bear interest. Such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
such interest shall accrue at the REMIC I Remittance Rate with respect to such
REMIC I Regular Interest for such Interest Accrual Period on the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date. The total amount of interest accrued with
respect to each REMIC I Regular Interest during each Interest Accrual Period is
referred to herein as its "Uncertificated Accrued Interest" for such Interest
Accrual Period. The portion of the Uncertificated Accrued Interest with respect
to any REMIC I Regular Interest for any Interest Accrual Period that shall be
distributable to REMIC II, as the holder of such REMIC I Regular Interest, on
the related Distribution Date pursuant to Section 4.01(j), shall be an amount
(herein referred to as the "Uncertificated Distributable Interest" with respect
to such REMIC I Regular Interest for the related Distribution Date) equal to (i)
the Uncertificated Accrued Interest with respect to such REMIC I Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by (ii) the portion of any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date that is allocable to such REMIC I Regular Interest. For
purposes of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if
any, for each Distribution Date shall be allocated among all the REMIC I Regular
Interests on a pro rata basis in accordance with their respective amounts of
Uncertificated Accrued Interest for the related Interest Accrual Period. If the
entire Uncertificated Distributable Interest with respect to any REMIC I Regular
Interest for any Distribution Date is not deemed distributed to REMIC II, as the
holder of such REMIC I Regular Interest, on such Distribution Date pursuant to
Section 4.01(j), then the unpaid portion of such Uncertificated Distributable
Interest shall be distributable with respect to such REMIC I Regular Interest
for future Distribution Dates as provided in such Section 4.01(j).
(h) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the Rated Final Distribution Date.
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(i) The REMIC I Residual Interest will not have a principal balance
and will not bear interest.
SECTION 2.13. Conveyance of the REMIC I Regular Interests; Acceptance
of the REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC I Regular Interests to
the Trustee for the benefit of the Holders of the REMIC III Certificates and the
Class R Certificates. The Trustee acknowledges the assignment to it of the REMIC
I Regular Interests and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Holders of the REMIC
III Certificates and the Class R Certificates.
SECTION 2.14. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain Matters
Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests
to the Trustee pursuant to Section 2.13 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. Neither
the REMIC II Residual Interest nor any of the REMIC II Regular Interests shall
be certificated. The REMIC II Regular Interests and the REMIC II Residual
Interest shall collectively constitute the entire beneficial ownership of REMIC
II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
II Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury Regulations Section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests will have the alphabetic or
alphanumeric designations indicated in the table set forth in the Preliminary
Statement under the caption "REMIC II".
(e) Each REMIC II Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth opposite such
REMIC II Regular Interest in the table set forth in the Preliminary Statement
under the caption "REMIC II". On each Distribution Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall be permanently reduced
by any distributions of principal deemed made with respect to such REMIC II
Regular Interest on such Distribution Date pursuant to Section 4.01(i) and shall
be further adjusted in the manner and to the extent provided in Section 4.04(b).
Except as provided in the preceding sentence and except to the extent of the
recovery of amounts previously allocated as a Realized Loss as a result of the
reimbursement from principal collections of Nonrecoverable Advances, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC III in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously deemed allocated to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) The per annum rate at which each REMIC II Regular Interest shall
accrue interest during each Interest Accrual Period is herein referred to as its
"REMIC II Remittance Rate". The REMIC II Remittance Rate with respect to each
REMIC II Regular Interest, for any Interest Accrual Period, is the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period. The "Weighted
Average REMIC I Remittance Rate" with respect to any Interest
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Accrual Period is the rate per annum equal to the weighted average, expressed as
a percentage and rounded to six decimal places, of the REMIC I Remittance Rates
applicable to the respective REMIC I Regular Interests for such Interest Accrual
Period, weighted on the basis of the respective Uncertificated Principal
Balances of such REMIC I Regular Interests outstanding immediately prior to the
related Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest. Such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
such interest shall accrue at the REMIC II Remittance Rate with respect to such
REMIC II Regular Interest for such Interest Accrual Period on the Uncertificated
Principal Balance of such REMIC II Regular Interest outstanding immediately
prior to the related Distribution Date. The total amount of interest accrued
with respect to each REMIC II Regular Interest during each Interest Accrual
Period is referred to herein as its "Uncertificated Accrued Interest" for such
Interest Accrual Period. The portion of the Uncertificated Accrued Interest with
respect to any REMIC II Regular Interest for any Interest Accrual Period that
shall be distributable to REMIC III, as the holder of such REMIC II Regular
Interest, on the related Distribution Date pursuant to Section 4.01(i), shall be
an amount (herein referred to as the "Uncertificated Distributable Interest"
with respect to such REMIC II Regular Interest for the related Distribution
Date) equal to (i) the Uncertificated Accrued Interest with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, reduced (to
not less than zero) by (ii) the portion of any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to such REMIC II Regular
Interest. For purposes of the foregoing, the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated among all the
REMIC II Regular Interests on a pro rata basis in accordance with their
respective amounts of Uncertificated Accrued Interest for the related Interest
Accrual Period. If the entire Uncertificated Distributable Interest with respect
to any REMIC II Regular Interest for any Distribution Date is not deemed
distributed to REMIC III, as the holder of such REMIC II Regular Interest, on
such Distribution Date pursuant to Section 4.01(i), then the unpaid portion of
such Uncertificated Distributable Interest shall be distributable with respect
to such REMIC II Regular Interest for future Distribution Dates as provided in
such Section 4.01(i).
(h) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.15. Conveyance of the REMIC II Regular Interests; Acceptance
of the REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC II Regular Interests to
the Trustee for the benefit of the Holders of the REMIC III Certificates and the
Class R Certificates. The Trustee acknowledges the assignment to it of the REMIC
II Regular Interests and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Holders of the REMIC
III Certificates and the Class R Certificates.
SECTION 2.16. Creation of REMIC III; Issuance of the REMIC III
Certificates, the REMIC III Components and the REMIC III Residual
Interest; Certain Matters Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests
to the Trustee pursuant to Section 2.15 and in exchange therefor, the REMIC III
Residual Interest shall be issued and the Certificate Administrator shall
execute, and the Authenticating Agent shall authenticate and deliver, to or upon
the order of the Depositor, the Class
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A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, 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 in
authorized denominations. The Class X Certificates shall collectively represent
all of the REMIC III Components whose designations are described in the first
sentence under the caption "REMIC III--Designations of the REMIC III Components"
in the Preliminary Statement hereto. The REMIC III Residual Interest shall not
be certificated. The interests evidenced by the REMIC III Certificates, together
with the REMIC III Residual Interest, shall collectively constitute the entire
beneficial ownership of REMIC III.
(c) The REMIC III Certificates shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
III Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC III. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC III (within the meaning of
Treasury Regulations Section 1.860D-1(b)(1)).
(d) The REMIC III Components of the Class X Certificates and the REMIC
III Certificates will have the alphabetic or alphanumeric designations indicated
in the Preliminary Statement under the caption "REMIC III".
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. As of the Closing Date, the Class Principal Balance of each
such Class of Principal Balance Certificates shall equal the amount set forth
opposite such Class of Certificates in the table set forth in the Preliminary
Statement under the caption "REMIC III". On each Distribution Date, the Class
Principal Balance of each such Class of Principal Balance Certificates shall be
permanently reduced by any distributions of principal made in respect of such
Class on such Distribution Date pursuant to Section 4.01(a) and shall be further
adjusted in the manner and to the extent provided in Section 4.04(a). Except as
provided in the preceding sentence and except to the extent of the recovery of
amounts previously allocated as a Realized Loss as a result of the reimbursement
from principal collections of Nonrecoverable Advances, the Class Principal
Balance of each such Class of Principal Balance Certificates shall not otherwise
be increased or reduced. Distributions in reimbursement of the Holders of any
such Class of Certificates for previously allocated Realized Losses and
Additional Trust Fund Expenses shall not constitute distributions of principal
and shall not result in any reduction of the Certificate Principal Balances of
such Principal Balance Certificates or of the related Class Principal Balance of
such Class of Principal Balance Certificate.
The Class X Certificates shall not have a principal balance. For
purposes of accruing interest, however, the Class X Certificates shall have or
be deemed to have a Class Notional Amount that is, as of any date of
determination, equal to the total of the then Component Notional Amounts of the
REMIC III Components of the Class X Certificates.
None of the REMIC III Components of the Class X Certificates shall
have a principal balance. For purposes of accruing interest, however, each REMIC
III Component of the Class X Certificates shall have a Component Notional
Amount. The Component Notional Amount of each REMIC III Component of the Class X
Certificates is, as of any date of determination, equal to the then current
Uncertificated Principal Balance of the REMIC II Regular Interest that is the
Corresponding REMIC II Regular Interest for such REMIC III Component.
(f) Each Class of REMIC III Certificates shall have or be deemed to
have a Pass-Through Rate. In each such case, the "Pass-Through Rate" for any
Interest Accrual Period shall equal: (a) with respect to the Class A-1
Certificates, an annual rate equal to the lesser of (i) 5.546% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest A-1
for the subject Interest Accrual Period; (b) with respect to the Class A-2
Certificates, an annual rate equal to the lesser of (i) 5.688% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest A-2
for the subject Interest Accrual Period; (c) with respect to the Class A-3
Certificates, an annual rate equal to the REMIC II Remittance Rate in respect of
REMIC II Regular Interest A-3 for the subject Interest Accrual Period minus
0.046% per annum; (d) with respect to the Class A-AB Certificates, an annual
rate equal to the REMIC II Remittance Rate in respect of REMIC II Regular
Interest A-AB for the subject Interest Accrual Period minus 0.064% per annum;
(e) with respect to the Class A-4 Certificates, an annual rate equal to the
REMIC II Remittance Rate in respect of REMIC II Regular Interest A-4 for the
subject Interest Accrual Period minus 0.039% per annum; (f) with respect to the
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Class A-1A Certificates, an annual rate equal to the REMIC II Remittance Rate in
respect of REMIC II Regular Interest A-1A for the subject Interest Accrual
Period minus 0.046% per annum; (g) with respect to the Class A-M Certificates,
an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II
Regular Interest A-M for the subject Interest Accrual Period; (h) with respect
to the Class A-J Certificates, an annual rate equal to the REMIC II Remittance
Rate in respect of REMIC II Regular Interest A-J for the subject Interest
Accrual Period; (i) with respect to the Class B Certificates, an annual rate
equal to the REMIC II Remittance Rate in respect of REMIC II Regular Interest B
for the subject Interest Accrual Period; (j) with respect to the Class C
Certificates, an annual rate equal to the REMIC II Remittance Rate in respect of
REMIC II Regular Interest C for the subject Interest Accrual Period; (k) with
respect to the Class D Certificates, an annual rate equal to the REMIC II
Remittance Rate in respect of REMIC II Regular Interest D for the subject
Interest Accrual Period; (l) with respect to the Class E Certificates, an annual
rate equal to the REMIC II Remittance Rate in respect of REMIC II Regular
Interest E for the subject Interest Accrual Period; (m) with respect to the
Class F Certificates, an annual rate equal to REMIC II Remittance Rate in
respect of REMIC II Regular Interest F for the subject Interest Accrual Period;
(n) with respect to the Class G Certificates, an annual rate equal to the REMIC
II Remittance Rate in respect of REMIC II Regular Interest G for the subject
Interest Accrual Period; (o) with respect to the Class H Certificates, an annual
rate equal to the REMIC II Remittance Rate in respect of REMIC II Regular
Interest H for the subject Interest Accrual Period; (p) with respect to the
Class J Certificates, an annual rate equal to the lesser of (i) 5.470% per annum
and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest J
for the subject Interest Accrual Period; (q) with respect to the Class K
Certificates, an annual rate equal to the lesser of (i) 5.470% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest K for
the subject Interest Accrual Period; (r) with respect to the Class L
Certificates, an annual rate equal to the lesser of (i) 5.470% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest L for
the subject Interest Accrual Period; (s) with respect to the Class M
Certificates, an annual rate equal to the lesser of (i) 5.470% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest M for
the subject Interest Accrual Period; (t) with respect to the Class N
Certificates, an annual rate equal to the lesser of (i) 5.470% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest N for
the subject Interest Accrual Period; (u) with respect to the Class O
Certificates, an annual rate equal to the lesser of (i) 5.470% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest O for
the subject Interest Accrual Period; (v) with respect to the Class P
Certificates, an annual rate equal to the lesser of (i) 5.470% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest P for
the subject Interest Accrual Period; and (x) with respect to the Class X
Certificates, an annual rate equal to the weighted average (expressed as a
percentage and rounded to at least six decimal places) of the Class X Strip
Rates applicable to the respective REMIC III Components of the Class X
Certificates for such Interest Accrual Period, weighted on the basis of the
respective Component Notional Amounts of such REMIC III Components outstanding
immediately prior to the related Distribution Date.
The "Class X Strip Rate" for each REMIC III Component of the Class X
Certificates, with respect to each Interest Accrual Period, is a rate per annum
equal to the excess, if any, of (i) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period, over (ii) the Pass-Through Rate in effect
during such Interest Accrual Period for the Corresponding Class of Principal
Balance Certificates.
(g) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of REMIC
III Certificates shall be the Rated Final Distribution Date.
(h) The REMIC III Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the Class V
and Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Post-ARD Additional Interest Received
by the Trust with respect to the Pooled Mortgage Loans that are ARD Mortgage
Loans and/or any successor REO Pooled Mortgage Loans with respect thereto
constitute a Grantor Trust for federal income tax purposes and, further, that
such segregated pool of assets be designated as "Grantor Trust V" and that the
affairs of such portion of the Trust Fund shall be conducted so as to qualify
as, a Grantor Trust. The provisions of this Agreement shall be interpreted
consistently with the foregoing intention. The Trustee, by its execution and
delivery
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hereof, acknowledges the assignment to it of the assets of Grantor Trust V and
declares that it holds and will hold such assets in trust for the exclusive use
and benefit of all present and future Holders of the Class V Certificates.
Concurrently with the assignment to the Trustee of the assets included in
Grantor Trust V, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, to or upon the order of the Depositor, the
Class V Certificates in authorized denominations evidencing the entire
beneficial ownership of Grantor Trust V and initially registered in the name of
ARCap CMBS Fund II REIT, Inc. The rights of the Holders of the Class V
Certificates to receive distributions from the proceeds of Grantor Trust V, and
all ownership interests of such Holders in and to such distributions, shall be
as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual Interest to
the Trustee for the benefit of the Holders of the Class R Certificates. It is
the intention of the parties hereto that the segregated pool of assets
consisting of the REMIC I Residual Interest, the REMIC II Residual Interest and
the REMIC III Residual Interest constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust R" and that the affairs of such portion of the Trust Fund shall
be conducted so as to qualify as, a Grantor Trust. The provisions of this
Agreement shall be interpreted consistently with the foregoing intention. The
Trustee, by its execution and delivery hereof, acknowledges the assignment to it
of the assets of Grantor Trust R and declares that it holds and will hold such
assets in trust for the exclusive use and benefit of all present and future
Holders of the Class R Certificates. Concurrently with the assignment to the
Trustee of the assets included in Grantor Trust R, the Certificate Registrar
shall execute, and the Authenticating Agent shall authenticate and deliver, to
or upon the order of the Depositor, the Class R Certificates in authorized
denominations evidencing the entire beneficial ownership of Grantor Trust R. The
rights of the Holders of the Class R Certificates to receive distributions from
the proceeds of Grantor Trust R, and all ownership interests of such Holders in
and to such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.
(a) Each Master Servicer shall be obligated to service and administer
the Serviced Mortgage Loans opposite which such Master Servicer's name is set
forth on the Pooled Mortgage Loan Schedule and any Replacement Pooled Mortgage
Loans delivered in replacement thereof as contemplated in Section 2.03 and shall
be deemed to be the "applicable Master Servicer" with respect to any REO
Property acquired in respect of any such Mortgage Loan. Each of the Master
Servicers and each Special Servicer shall service and administer the Serviced
Mortgage Loans and any Administered REO Properties that it is obligated to
service and administer pursuant to this Agreement on behalf of the Trustee, and
in the best interests and for the benefit of the Certificateholders (or, in the
case of any Serviced Mortgage Loan Group, of the Certificateholders and the
related Serviced Non-Pooled Mortgage Loan Noteholder(s)), as a collective whole,
in accordance with any and all applicable laws, the terms of this Agreement, and
the terms of the respective Serviced Mortgage Loans and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard. In
clarification of, and neither in addition to nor in deletion of the duties and
obligations of the Master Servicers or the Special Servicers pursuant to this
Agreement, no provision herein contained shall be construed as an express or
implied guarantee by either Master Servicer or any Special Servicer of the
collectibility or recoverability of payments on the Mortgage Loans or shall be
construed to impair or adversely affect any rights or benefits provided by this
Agreement to such Master Servicer or such Special Servicer (including with
respect to Master Servicing Fees or the right to be reimbursed for Advances).
Any provision in this Agreement for any Advance by a Master Servicer, a Special
Servicer or the Trustee is intended solely to provide liquidity for the benefit
of the Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage
Loan Noteholders, and not as credit support or otherwise to impose on any such
Person the risk of loss with respect to one or more of the Mortgage Loans. No
provision hereof shall be construed to impose liability on any Master Servicer
or Special Servicer for the reason that any recovery to the Certificateholders
(or, in the case of any Serviced Mortgage Loan Group, to the Certificateholders
and the related Serviced Non-Pooled Mortgage Loan Noteholder(s)) in respect of a
Mortgage Loan at any time after a determination of present value recovery made
in its reasonable and good faith judgment in accordance with the Servicing
Standard by such Master Servicer or Special Servicer hereunder at any time is
less than the amount reflected in such determination. Without limiting the
foregoing, and subject to Section 3.21, (i) each Master Servicer shall service
and administer all Performing Serviced Mortgage Loans for which it is the Master
Servicer, (ii) each Special Servicer shall service and administer (x) each
Serviced Mortgage Loan (other than a Corrected Mortgage Loan) as to which a
Servicing Transfer Event has occurred and for which it is the applicable Special
Servicer, and (y) each Administered REO Property for which it is the applicable
Special Servicer; provided, however, that the applicable Master Servicer shall
continue to (A) make P&I Advances required hereunder with respect to each Pooled
Mortgage Loan for which it is the applicable Master Servicer that constitutes a
Specially Serviced Mortgage Loan and each successor REO Pooled Mortgage Loan in
respect thereof, (B) make Servicing Advances required hereunder with respect to
any Specially Serviced Mortgage Loans and Administered REO Properties (and
related REO Pooled Mortgage Loans) for which it is the applicable Master
Servicer, (C) receive payments, collect information and deliver reports to the
Certificate Administrator and the Trustee required hereunder with respect to any
Specially Serviced Mortgage Loans and Administered REO Properties (and the
related REO Mortgage Loans) for which it is the applicable Master Servicer, and
(D) render such incidental services with respect to any Specially Serviced
Mortgage Loans and Administered REO Properties for which it is the applicable
Master Servicer as are specifically provided for herein. In addition, each
Master Servicer shall notify the applicable Special Servicer within three
Business Days following its receipt of any collections on any Specially Serviced
Mortgage Loan, such Special Servicer shall within one Business Day thereafter
notify such Master Servicer with instructions on how to apply such collections
and such Master Servicer shall apply such collections in accordance with such
instructions within one Business Day following such Master Servicer's receipt of
such notice.
Certain provisions of this Article III make reference to their
applicability to Serviced Mortgage Loans. Notwithstanding such explicit
references, references to "Serviced Mortgage Loans" contained in this Article
III, unless
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otherwise specified, shall be construed to refer also to each Serviced Mortgage
Loan Group in its entirety (but any other term that is defined in Article I and
used in this Article III shall be construed according to such definition without
regard to this sentence).
(b) Subject to Section 3.01(a) and the other terms and provisions of
this Agreement, the Master Servicers and the Special Servicers shall each have
full power and authority, acting alone or, subject to Section 3.22, through
Primary Servicer and/or Sub-Servicers, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, each
Master Servicer (with respect to those Serviced Mortgage Loans that it is
obligated to service and administer pursuant to this Agreement) and each Special
Servicer (with respect to the Specially Serviced Mortgage Loans and Administered
REO Properties for which it is the applicable Special Servicer), in its own name
or in the name of the Trustee, is hereby authorized and empowered by the Trustee
and (in the case of each Serviced Mortgage Loan Group) the related Serviced
Non-Pooled Mortgage Loan Noteholders, to execute and deliver, on behalf of the
Certificateholders, the Trustee and (in the case of each Serviced Mortgage Loan
Group) each Serviced Non-Pooled Mortgage Loan Noteholder, or any of them: (i)
any and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the Mortgage or other
security document in the related Mortgage File on the related Mortgaged Property
and other related collateral; (ii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, or of partial or full
defeasance, and all other comparable instruments; and (iii) subject to Sections
3.08, 3.20, 3.24, 3.27 and 3.28, any and all assumptions, modifications,
waivers, substitutions, extensions, amendments, consents to transfers of
interests in Borrowers, consents to any subordinate financings to be secured by
any related Mortgaged Property, consents to any mezzanine financing to be
secured by ownership interests in a Borrower, consents to and monitoring of the
application of any proceeds of insurance policies or condemnation awards to the
restoration of the related Mortgaged Property or otherwise, documents relating
to the management, operation, maintenance, repair, leasing and marketing of the
related Mortgaged Properties (including agreements and requests by any Borrower
with respect to modifications of the standards of operation and management of
the Mortgaged Properties or the replacement of asset managers), documents
exercising any or all of the rights, powers and privileges granted or provided
to the holder of any Serviced Mortgage Loan under the related Mortgage Loan
Documents, lease subordination agreements, non-disturbance and attornment
agreements or other leasing or rental arrangements that may be requested by any
Borrower or its tenants, documents granting, modifying or releasing (or joining
the Borrower therein) any easements, covenants, conditions, restrictions,
equitable servitudes, or land use or zoning requirements with respect to the
Mortgaged Properties, instruments relating to the custody of any collateral that
now secures or hereafter may secure any Serviced Mortgage Loan and any other
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of either Master Servicer or any Special Servicer, furnish,
or cause to be so furnished, to such Master Servicer or such Special Servicer,
as the case may be, any limited powers of attorney and other documents (each of
which shall be prepared by such Master Servicer or such Special Servicer, as the
case may be) necessary or appropriate to enable it to carry out its servicing
and administrative duties hereunder; provided that the Trustee shall not be held
liable for any misuse of any such power of attorney by either Master Servicer or
Special Servicer. Without limiting the generality of the foregoing, the Trustee
shall execute and deliver to each Master Servicer and the Special Servicer, on
or before the Closing Date, a power of attorney substantially in the form
attached as Exhibit L hereto. Notwithstanding anything contained herein to the
contrary, neither a Master Servicer nor the Special Servicer shall, without the
Trustee's written consent: (i) initiate any action, suit or proceeding solely
under the Trustee's name without indicating such Master Servicer's or Special
Servicer's, as applicable, representative capacity; or (ii) take any action with
the intent to cause, and that actually causes, the Trustee to be registered to
do business in any state. Each Master Servicer and the Special Servicer shall
indemnify (out of its own funds without reimbursement therefor) the Trustee for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such power of attorney by
such Master Servicer or the Special Servicer, as the case may be.
(c) The applicable Master Servicer or the applicable Special Servicer,
as the case may be, in accordance with this Agreement, shall service and
administer each Cross-Collateralized Group as a single Mortgage Loan as and when
necessary and appropriate consistent with the Servicing Standard and applicable
law and in accordance with this Agreement.
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(d) The relationship of each Master Servicer and each Special Servicer
to the Trustee and, unless they are the same Person, one another (whether
between a Master Servicer and the other Master Servicer or a Special Servicer
and the other Special Servicer or a Master Servicer and a Special Servicer)
under this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
(e) Notwithstanding any provision of this Agreement to the contrary,
each Serviced Mortgage Loan Group shall be serviced and administered under this
Agreement only for as long as the Pooled Mortgage Loan that is a part of such
Serviced Mortgage Loan Group or the beneficial interest in any related REO
Property constitutes an asset of the Trust Fund; provided, however, that,
notwithstanding the foregoing, the servicing and administration of a Serviced
Mortgage Loan Group pursuant to the terms hereof and the applicable Mortgage
Loan Group Intercreditor Agreement shall continue until a new servicing
agreement is entered into with respect to such Serviced Mortgage Loan Group as
provided in the related Mortgage Loan Group Intercreditor Agreement but such
servicing and administration shall be conducted as if such Serviced Mortgage
Loan Group or any related REO Property were the sole assets subject hereto
(including for purposes of reimbursement of Advances and payment of fees and
expenses), with references in this Agreement applicable to the Trust, the
Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or
any representative of any such Certificateholders all being construed to refer
to such similar terms as are applicable to the then current holder of the
Mortgage Note for the related Pooled Mortgage Loan.
(f) Nothing contained in this Agreement shall limit the ability of
either 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 Borrower as though
such Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not be
construed to modify the Servicing Standard.
(g) The parties hereto acknowledge that each Non-Trust-Serviced Pooled
Mortgage Loan is subject to the terms and conditions of the related Mortgage
Loan Group Intercreditor Agreement. The parties hereto recognize the respective
rights and obligations of the "Holders" and "Lenders" under the Mortgage Loan
Group Intercreditor Agreements for such Non-Trust-Serviced Pooled Mortgage
Loans, including with respect to the allocation of collections and losses on or
in respect of such Non-Trust-Serviced Pooled Mortgage Loans and the related
Non-Pooled Pari Passu Companion Loans and the making of payments to the
"Holders" and "Lenders" in accordance with each such Mortgage Loan Group
Intercreditor Agreement and the related Non-Trust Servicing Agreement. The
parties hereto further acknowledge that, pursuant to the related Mortgage Loan
Group Intercreditor Agreement for each Non-Trust-Serviced Pooled Mortgage Loan,
each Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled Pari
Passu Companion Loans are to be serviced and administered by the related
Non-Trust Master Servicer and related Non-Trust Special Servicer in accordance
with the related Non-Trust Servicing Agreement. Although each Non-Trust-Serviced
Pooled Mortgage Loan is not a Serviced Mortgage Loan hereunder, WFB as a Master
Servicer hereunder (and any successors to WFB in such capacity) shall have
certain duties and shall constitute the "applicable Master Servicer" hereunder
with respect to such Non-Trust-Serviced Pooled Mortgage Loan.
For so long as a Non-Trust-Serviced Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan with respect thereto is part of the Mortgage
Pool and such Non-Trust-Serviced Pooled Mortgage Loan and its related Non-Pooled
Pari Passu Companion Loans, or any related REO Property with respect thereto,
are being serviced and administered under the related Non-Trust Servicing
Agreement, the applicable Master Servicer shall promptly notify the Trustee and
the Controlling Class Representative of any defaults on the part of the related
Non-Trust Master Servicer and/or the related Non-Trust Special Servicer of which
the applicable Master Servicer is aware. If there are at any time amounts due
from the Trust, as holder of a Non-Trust-Serviced Pooled Mortgage Loan, to any
party under the related Mortgage Loan Group Intercreditor Agreement or the
related Non-Trust Servicing Agreement, the applicable Master Servicer shall
notify the General Special Servicer and the Controlling Class Representative,
and the applicable Master Servicer may pay such amounts out of its Collection
Account, and, if and to the extent that the deposits in such Master Servicer's
Collection Account are insufficient, may (or, at the direction of the
Controlling Class Representative, shall) pay such amounts from its own funds
(provided that any such payment from its own funds shall constitute, and be
reimbursable as, a Servicing Advance). Except as otherwise expressly addressed
in Section 3.20, if a party to the Non-
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Trust Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan
requests the Trustee to consent to a modification, waiver or amendment of, or
other loan-level action related to, such Non-Trust-Serviced Pooled Mortgage Loan
(and a modification, waiver or amendment of the related Non-Trust Servicing
Agreement and/or the related Mortgage Loan Group Intercreditor Agreement shall
not be subject to the operation of this sentence but shall instead be subject to
the operation of the second succeeding sentence), then the Trustee shall
promptly deliver a copy of such request to the Special Servicer and the Trustee
shall not grant such consent unless the Special Servicer directs the Trustee to
grant such consent; provided, however, that, if such Non-Trust-Serviced Pooled
Mortgage Loan were serviced hereunder and such action would not be permitted
without written confirmation from a Rating Agency to the effect that such action
would not, in and of itself, result in an Adverse Rating Event with respect to
any Class of Rated Certificates, then the Special Servicer shall not grant such
direction without first having obtained such written confirmation (payable at
the expense of the party requesting such approval of the Trustee, if a
Certificateholder or a party to this Agreement, otherwise from the related
Master Servicer's Collection Account). If a Responsible Officer of the Trustee
receives actual notice of a default or event of default on the part of any other
party under the related Non-Trust Servicing Agreement, then (subject to the next
paragraph) the Trustee shall notify (in writing), and act in accordance with the
instructions of, the Controlling Class Representative; provided that, if such
instructions are not provided within a reasonable time period (not to exceed ten
(10) Business Days or such lesser response time as is afforded under the related
Mortgage Loan Documents or related Non-Trust Servicing Agreement, as applicable)
or if the Trustee is not permitted (pursuant to the next paragraph) to follow
such instructions, then the Trustee will take such action or inaction, as
directed in writing by the Holders of the Certificates entitled to a majority of
the Voting Rights within a reasonable period of time that does not exceed such
response time as is afforded under the related Mortgage Loan Documents or
related Non-Trust Servicing Agreement, as applicable. If the Trustee receives a
request from any party to a Non-Trust Servicing Agreement for consent to or
approval of a modification, waiver or amendment of such Non-Trust Servicing
Agreement and/or the related Mortgage Loan Group Intercreditor Agreement, or the
adoption of any servicing agreement that is the successor to and/or in
replacement of such Non-Trust Servicing Agreement in effect as of the Closing
Date or a change in servicer under such Non-Trust Servicing Agreement, then the
Trustee shall not grant such consent or approval unless it receives the consent
of the applicable Master Servicer under this Agreement, the consent of the
Controlling Class Representative and a written confirmation (at the expense of
the party requesting such approval of the Trustee, if a Certificateholder or a
party to this Agreement, otherwise from the related Master Servicer's Collection
Account) from each Rating Agency to the effect that such consent or approval
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates. During the continuation of any event of default or other default
under a Non-Trust Servicing Agreement, each of the Trustee and the applicable
Master Servicer shall have the right to take all actions to enforce its rights
and remedies and to protect the interests, and enforce the rights and remedies,
of the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs of
claim and debt in connection therewith). The reasonable costs and expenses
incurred by the Trustee in connection with such enforcement shall, at the
direction of the Trustee, be paid by, and reimbursable to, the applicable Master
Servicer as Servicing Advances (subject to Section 3.11(h)). The Trustee and the
applicable Master Servicer shall each promptly forward all material notices or
other communications delivered to it in connection with each Non-Trust Servicing
Agreement to the other such party, the Depositor and the Controlling Class
Representative and, if such notice or communication is in the nature of a notice
or communication that would be required to be delivered to the Rating Agencies
if the related Non-Trust-Serviced Pooled Mortgage Loan were a Serviced Mortgage
Loan, to the Rating Agencies.
Notwithstanding anything herein to the contrary: (i) the Trustee shall
not have any right or obligation to consult with or to seek and/or obtain
consent or approval from any Controlling Class Representative prior to acting
during the period following any resignation or removal of a Controlling Class
Representative and before a replacement is selected; and (ii) no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by the prior paragraph, may (and the Trustee shall ignore and act
without regard to any such advice, direction or objection that the Trustee has
determined, in its reasonable, good faith judgment, would): (A) require or cause
the Trustee to violate applicable law, or any other Section of this Agreement,
(B) result in an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool, (C) expose
the Trust, the Depositor, a Master Servicer (or a Primary Servicer or
Sub-Servicer acting on behalf of a Master Servicer), the Special Servicer, the
Certificate Administrator, the Trustee or any of their respective Affiliates,
members, managers, officers,
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directors, employees or agents, to any material claim, suit or liability or (D)
expand the scope of a Trustee's responsibilities under this Agreement.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The applicable Master Servicer and the applicable Special Servicer
shall make efforts consistent with the Servicing Standard and the terms of this
Agreement to collect all payments required under the terms and provisions of the
respective Serviced Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard; provided that none of the Master Servicers or the Special Servicers
shall, with respect to any Mortgage Loan that constitutes an ARD Mortgage Loan
after its Anticipated Repayment Date, take any enforcement action with respect
to the payment of Post-ARD Additional Interest (other than the making of
requests for its collection), and a Special Servicer may do so only if (i) the
taking of an enforcement action with respect to the payment of other amounts due
under such Mortgage Loan is, in the reasonable judgment of such Special
Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the reasonable judgment of the Special Servicer, exercised in
accordance with the Servicing Standard, 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 Advance
Interest. Consistent with the foregoing, the applicable Master Servicer may
grant case-by-case waivers of Default Charges in connection with a late payment
on a Serviced Mortgage Loan, provided that, for any waiver thereof under any
Serviced Mortgage Loan where both (x) any Advance Interest is then outstanding
and (y) either (1) the waiver would be the fourth (or more) such waiver for such
Mortgage Loan or (2) such Mortgage Loan is 60 days or more delinquent in respect
of any Monthly Payment, the applicable Master Servicer shall have obtained the
consent of the applicable Special Servicer, which shall have obtained the
consent of the Controlling Class Representative and/or the related Serviced
Mortgage Loan Group Controlling Party, as and to the extent contemplated by
Sections 3.08, 3.20, 3.24, 3.27 and 3.28, as applicable.
(b) At least 90 days prior to the maturity date of each Balloon
Mortgage Loan, the applicable Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the applicable Special
Servicer) and shall request confirmation that the Balloon Payment will be paid
by such maturity date.
(c) With respect to each Non-Trust-Serviced Pooled Mortgage Loan (if
any):
(i) promptly following the Closing Date, the Trustee shall send
written notice in the form of Exhibit P attached hereto, accompanied by an
executed version of this Agreement, to the trustee under the applicable
pooling and servicing agreement and the related Non-Trust Master Servicer
stating that, as of the Closing Date, the Trustee is the holder of such
Non-Trust-Serviced Pooled Mortgage Loan and directing each such recipient
to remit to the applicable Master Servicer all amounts payable to, and to
forward, deliver or otherwise make available, as the case may be, to the
applicable Master Servicer all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to, the holder of such Non-Trust-Serviced Pooled
Mortgage Loan under the related Mortgage Loan Group Intercreditor Agreement
and such pooling and servicing agreement; in addition, such notice shall
provide contact information for the Trustee, the applicable Master
Servicer, the Special Servicer and the Controlling Class Representative.
(ii) with respect to such Non-Trust-Serviced Pooled Mortgage
Loan, the related Mortgaged Property or any related REO Property, the
applicable Master Servicer shall, on the day of receipt thereof, if such
Master Servicer is the same Person or an Affiliate of the related Non-Trust
Master Servicer, and otherwise within one Business Day following the
receipt thereof, deposit into its Collection Account all amounts received
by it from the Non-Trust Master Servicer or any other party under a
Non-Trust Servicing Agreement;
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(iii) if, as of the close of business on the Determination Date
on which a Collection Period ends in any calendar month, the applicable
Master Servicer has not received a Monthly Payment due on such
Non-Trust-Serviced Pooled Mortgage Loan during such Collection Period for
any reason (whether because such Due Date has not yet occurred, the grace
period for such Monthly Payment has not yet expired, the related Borrower
has failed to make such Monthly Payment, the remittance date for such
Monthly Payment has not yet occurred under the terms of the Non-Trust
Servicing Agreement or the related Non-Trust Master Servicer has failed to
timely make a remittance of such Monthly Payment that it is required to
have made), then (A) for the avoidance of doubt, the applicable Master
Servicer shall make a P&I Advance with respect to such amount on the Master
Servicer Remittance Date immediately succeeding such Collection Period,
subject to and in accordance with Section 4.03 (and, in accordance with
such Section 4.03, if the applicable Master Servicer fails to make such P&I
Advance, then the Trustee shall make such P&I Advance); and (B)
notwithstanding any contrary provision of Section 4.03, Advance Interest
shall not commence accruing on such P&I Advance until the date that is (i)
one calendar day after the later of the Due Date for such Monthly Payment
or the expiration of the grace period, if any, applicable to such Due Date,
but only if the Borrower failed to make its Monthly Payment on such date,
or (ii) otherwise, the date that is one calendar day after the date on
which the related Non-Trust Master Servicer is required to remit such
Monthly Payment to the applicable Master Servicer pursuant to the terms of
the applicable Non-Trust Servicing Agreement and/or applicable Mortgage
Loan Group Intercreditor Agreement; and
(iv) if the applicable Master Servicer has notice, or a Servicing
Officer of the Master Servicer has knowledge, of a material failure of a
Non-Trust Master Servicer to make a remittance that it is required to make
to such applicable Master Servicer under the terms of the related Non-Trust
Servicing Agreement and/or the related Mortgage Loan Group Intercreditor
Agreement, then such applicable Master Servicer shall provide notice of
such failure to such Non-Trust Master Servicer, the trustee or other holder
of the related Non-Pooled Pari Passu Companion Loans under the related
Non-Trust Servicing Agreement, the Trustee and the Controlling Class
Representative.
(d) With respect to each Pooled Mortgage Loan for which the Due Date
is scheduled to occur on the 3rd or 5th day of each month (subject to any
applicable business day convention), to the extent that a voluntary Principal
Prepayment is received by the applicable Master Servicer after the end of the
Collection Period ending in such month (and such Pooled Mortgage Loan is not a
Specially Serviced Mortgage Loan or a defaulted Mortgage Loan), such Principal
Payment and any accompanying interest (and any accompanying Prepayment Premium
or Yield Maintenance Charge that is Received by the Trust) (and the interest
referred to above shall be net of any portion thereof that is similar to a
Prepayment Interest Excess representing interest accrued from and after the Due
Date in such month, which portion shall be retained by the applicable Master
Servicer as Additional Master Servicer Compensation) will nevertheless be
distributed to Certificateholders on the Distribution Date occurring in such
month if the applicable Master Servicer (a) provides notice to the Certificate
Administrator and the Servicer Report Administrator no later than 2:00 p.m. (New
York City time) two (2) Business Days prior to the related Distribution Date
reflecting the related Borrower's intention to make such payment, and (b) both
(i) remits such payment (together with, solely in the case of a Principal
Prepayment made before a Due Date, a payment from such Master Servicer's own
funds in an amount equal to the interest that would have accrued (at the related
Net Mortgage Rate) on the Principal Prepayment from and including the date of
the Principal Prepayment to but excluding such Due Date) to the Certificate
Administrator not later than 1:00 p.m. (New York City time) on the related
Master Servicer Remittance Date and (ii) provides to the Certificate
Administrator a revised CMSA Loan Periodic Update File not later than 9:00 a.m.
(New York City time) on the related Master Servicer Remittance Date. If the
timing and notice requirements set forth in (a) and (b) above are satisfied with
respect to such voluntary Principal Prepayment, such payment shall be included
as part of the Master Servicer Remittance Amount for the applicable Master
Servicer for the related Distribution Date and the Principal Distribution Amount
that would otherwise have been in effect for the related Distribution Date shall
be increased by the amount of such Principal Prepayment. If the timing and
notice requirements set forth in (a) and (b) above are not satisfied with
respect to such voluntary Principal Prepayment, then (A) such circumstances
shall constitute an Event of Default of the applicable Master Servicer but the
applicable Master Servicer shall be entitled to cure such Event of Default (and
may not be terminated under Article VII unless it does not effect such cure) by
making, not later than the Master Servicer Remittance Date occurring in the
month immediately
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following the month in which the Principal Prepayment occurred, a payment of
cash, from its own funds without right of reimbursement therefor, to the
Certificate Administrator (for deposit in the Distribution Account) in an amount
equal to the sum of one month's interest at the Net Mortgage Rate of the related
Pooled Mortgage Loan on a principal amount equal to such Principal Prepayment
and, solely in the case of a Principal Prepayment made before a Due Date, the
interest that would have accrued (at the related Net Mortgage Rate) on the
Principal Prepayment from and including the date of the Principal Prepayment to
but excluding such Due Date; and (B) such Principal Prepayment (and such
accompanying Prepayment Premium or Yield Maintenance Charge), and any
accompanying interest will be deemed to have been received during the Collection
Period related to the Distribution Date occurring in the month immediately
following the month in which such Principal Prepayment was made. Notwithstanding
any contrary provision of the foregoing, the applicable Master Servicer shall
not be required to make (and shall not be in default hereunder for not making) a
payment of one month's interest otherwise described in the preceding sentence to
the extent that such interest otherwise constitutes all or a portion of any
Compensating Interest Payment that the applicable Master Servicer otherwise
makes in respect of the related Pooled Mortgage Loan. In the case of each Pooled
Mortgage Loan for which the Stated Maturity Date is scheduled to occur on a day
other than the first day of a month (subject to any applicable business day
convention), if the related Balloon Payment due on such Stated Maturity Date is
timely received but such date happens to fall later than the end of the
Collection Period ending in the same month, then the applicable Master Servicer
shall (a) provide notice to the Certificate Administrator and the Servicer
Report Administrator no later than 2:00 p.m. (New York City time) two (2)
Business Days prior to the related Distribution Date reflecting the related
Borrower's intention to make such payment, and (b) both (i) remit such payment
to the Certificate Administrator not later than 1:00 p.m. (New York City time)
on the related Master Servicer Remittance Date and (ii) provide to the
Certificate Administrator a revised CMSA Loan Periodic Update File not later
than 9:00 a.m. (New York City time) on the related Master Servicer Remittance
Date, in which case such Balloon Payment shall be considered to have been
received during the Collection Period related to the Distribution Date occurring
in such month for purposes of the remittance of the Master Servicer Remittance
Amount for the applicable Master Servicer for such Distribution Date and the
distribution of the Available Distribution Amount and the Principal Distribution
Amount for such Distribution Date. For the avoidance of doubt, if such Balloon
Payment is not timely received on or before such Stated Maturity Date, then the
applicable Master Servicer shall make the applicable P&I Advance on the Master
Servicer Remittance Date immediately succeeding such Collection Period, subject
to and in accordance with Section 4.03(b) (and, in accordance with such Section
4.03(b), if the applicable Master Servicer fails to make such P&I Advance, then
the Trustee shall make such P&I Advance). In the case of the Pooled Mortgage
Loans that permit a prepayment to be made, subject to a next business day
convention, during the first five days of a month in which prepayment is
permitted, the applicable Master Servicer will in any event be entitled to remit
those prepayments as part of the Master Servicer Remittance Amount for that
month so as to avoid a Prepayment Interest Shortfall (or similar shortfall) that
may otherwise result.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Servicing Accounts"), in which all Escrow Payments
received by it with respect to the Serviced Mortgage Loans for which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Escrow Payments shall be held,
each Servicing Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Servicing
Accounts maintained by it, and may apply Escrow Payments held therein with
respect to any Serviced Mortgage Loan (together with interest earned thereon),
only as follows: (i) to effect the payment of real estate taxes, assessments,
insurance premiums (including, premiums on any Environmental Insurance Policy),
ground rents (if applicable) and comparable items in respect of the related
Mortgaged Property; (ii) to reimburse such Master Servicer, the applicable
Special Servicer or the Trustee, as applicable, for any unreimbursed Servicing
Advances made thereby with respect to such Mortgage Loan to cover any of the
items described in the immediately preceding clause (i); (iii) to refund to the
related Borrower any sums as may be determined to be overages; (iv) to pay
interest or other income, if required and as described below, to the related
Borrower on balances in the Servicing Account (or, if and to the extent not
payable
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to the related Borrower to pay such interest or other income (up to the amount
of any Net Investment Earnings in respect of such Servicing Account for each
Collection Period) to such Master Servicer); (v) disburse Insurance Proceeds if
required to be applied to the repair or restoration of the related Mortgaged
Property, (vi) after an event of default, to pay the principal of, accrued
interest on and any other amounts payable with respect to such Mortgage Loan;
(vii) to withdraw amounts deposited in the Servicing Account in error; or (viii)
to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. Each Master Servicer shall pay or
cause to be paid to the related Borrowers interest and other income, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
and to the extent required by law or the terms of the related Mortgage Loan
Documents. If a Master Servicer shall deposit in a Servicing Account maintained
by it any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. Promptly after any Escrow Payments are received by the
applicable Special Servicer from the Borrower under any Serviced Mortgage Loan,
and in any event within one Business Day after any such receipt, the applicable
Special Servicer shall remit such Escrow Payments to the applicable Master
Servicer for deposit in the applicable Servicing Account(s).
(b) The applicable Master Servicer shall as to each Serviced Mortgage
Loan (including each Specially Serviced Mortgage Loan): (i) maintain accurate
records with respect to the related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof and (ii) use reasonable efforts consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment with
respect to any Serviced Mortgage Loan, the applicable Master Servicer shall
apply Escrow Payments as allowed under the terms of the related Mortgage Loan
Documents; provided that if such Mortgage Loan does not require the related
Borrower to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, the applicable Master
Servicer (or, if such Mortgage Loan becomes a Specially Serviced Mortgage Loan,
the applicable Special Servicer) shall, subject to and in accordance with the
Servicing Standard, use reasonable efforts to enforce the requirement of the
related Mortgage Loan Documents that the related Borrower make payments in
respect of such items at the time they first become due.
(c) In accordance with the Servicing Standard, but subject to Section
3.11(h), the applicable Master Servicer, with respect to each Serviced Mortgage
Loan for which it is the Master Servicer (including each such Mortgage Loan that
is a Specially Serviced Mortgage Loan) shall make a Servicing Advance with
respect to the related Mortgaged Property in an amount equal to all such funds
as are necessary for the purpose of effecting the timely payment of (i) real
estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies (including, premiums on
any Environmental Insurance Policy), in each instance prior to the applicable
penalty or termination date, in each instance if and to the extent that (x)
Escrow Payments (if any) collected from the related Borrower are insufficient to
pay such item when due, and (y) the related Borrower has failed to pay such item
on a timely basis; provided that, in the case of amounts described in the
preceding clause (i), the applicable Master Servicer shall not make a Servicing
Advance of any such amount if such Master Servicer reasonably anticipates (in
accordance with the Servicing Standard) that such amounts will be paid by the
related Borrower on or before the applicable penalty date, in which case such
Master Servicer shall use its best reasonable efforts consistent with the
Servicing Standard to confirm whether such amounts have been paid and, subject
to Section 3.11(h), shall make a Servicing Advance of such amounts, if
necessary, not later than five Business Days following confirmation by such
Master Servicer that such amounts have not been paid by the applicable penalty
date. All such Advances shall be reimbursable in the first instance from related
collections from the Borrowers and further as provided in Section 3.05(a). No
costs incurred by a Master Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of any
Mortgaged Property shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the respective unpaid principal
balances or Stated Principal Balances of the subject Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit; provided that
this sentence shall not be construed to limit the rights of the applicable
Master Servicer or Special Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
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(d) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Reserve Accounts"), in which all Reserve Funds, if any,
received by it with respect to the Serviced Mortgage Loans as to which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Reserve Funds shall be held,
each Reserve Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Reserve
Accounts maintained by it, and may apply Reserve Funds held therein with respect
to any Serviced Mortgage Loan (together with interest earned thereon), only as
follows: (i) in the case of Reserve Funds that are intended to cover specific
costs and expenses, to pay for, or to reimburse the related Borrower in
connection with, the costs associated with the related tenant improvements,
leasing commissions, repairs, replacements, capital improvements and/or
environmental testing and remediation, litigation and/or other special expenses
at or with respect to the related Mortgaged Property for which such Reserve
Funds were intended and to refund the related Borrower any sums as may be
determined to be overages; (ii) in the case of Reserve Funds intended to cover
debt service payments, to apply amounts on deposit therein in respect of
principal and interest on such Mortgage Loan; (iii) to reimburse such Master
Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advances made thereby with respect to such Mortgage Loan to cover
any of the items described in the immediately preceding clauses (i) and (ii)
(or, if any such Advance has become an Unliquidated Advance, to transfer to the
related Collection Account an amount equal to the reimbursement that would
otherwise have been made as described in this clause (iii)); (iv) to release
such Reserve Funds to the related Borrower if the conditions precedent for such
release are satisfied or otherwise apply such Reserve Funds in accordance with
the related Mortgage Loan Documents if the conditions precedent for such release
are not satisfied; (v) to pay interest or other income, if required and as
described below, to the related Borrower on balances in the Reserve Account (or,
if and to the extent not payable to the related Borrower, to pay such interest
or other income (up to the amount of any Net Investment Earnings in respect of
such Reserve Account for each Collection Period) to such Master Servicer); (vi)
to withdraw amounts deposited in such Reserve Account in error; (vii) after an
event of default, to pay the principal of, accrued interest on, and any other
amounts payable with respect to such Mortgage Loan; or (viii) to clear and
terminate the Reserve Account at the termination of this Agreement in accordance
with Section 9.01. If the Borrower under any Serviced Mortgage Loan delivers a
Letter of Credit in lieu of Reserve Funds, then the applicable Master Servicer
shall make draws on such Letter of Credit at such times and for such purposes as
it would have made withdrawals from a Reserve Account and, to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, in order to convert the amount of such Letter of Credit into
Reserve Funds. Promptly after any Reserve Funds are received by a Special
Servicer from any Borrower, and in any event within one Business Day of such
receipt, such Special Servicer shall remit such Reserve Funds to the applicable
Master Servicer for deposit in the applicable Reserve Account(s). Any
out-of-pocket expenses, including reasonable attorneys' fees and expenses,
incurred by a Master Servicer or a Special Servicer to enable such Master
Servicer or such Special Servicer, as the case may be, to make any draw under
any Letter of Credit shall constitute a Servicing Advance, and such Master
Servicer or such Special Servicer, as the case may be, shall make reasonable
efforts to recover such expenses from the related Borrower to the extent the
Borrower is required to pay such expenses under the terms of the related
Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of the Mortgage Loans Documents
for a Serviced Mortgage Loan, the applicable Master Servicer shall request from
the related Borrower written confirmation thereof within a reasonable time after
the later of the Closing Date and the date as of which such plan is required to
be established or completed. To the extent any other action or remediation with
respect to environmental matters is required to have been taken or completed
pursuant to the terms of a Serviced Mortgage Loan, the applicable Master
Servicer shall request from the related Borrower written confirmation of such
action and remediations within a reasonable time after the later of the Closing
Date and the date as of which such action or remediations are required to have
been taken or completed. To the extent that a Borrower shall fail to promptly
respond to any inquiry described in this Section 3.03(e), the applicable Master
Servicer shall notify the Trustee, the applicable Special Servicer, the
Controlling Class Representative and (if affected) the related Serviced
Non-Pooled Mortgage Loan Noteholder(s). The applicable Master Servicer shall
promptly notify the Trustee, the applicable Special Servicer, the Controlling
Class Representative and any affected Serviced Non-Pooled Mortgage Loan
Noteholders if such
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Master Servicer determines that the Borrower under any Serviced Mortgage Loan
has failed to perform its obligations under such Serviced Mortgage Loan in
respect of environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan Documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
(g) With respect to each Serviced Mortgage Loan that requires the
related Borrower to establish and maintain one or more lock-box, cash management
or similar accounts, the applicable Master Servicer shall establish and
maintain, in accordance with the Servicing Standard, such account(s) in
accordance with the terms of the related Mortgage Loan Documents. No such
lock-box account is required to be an Eligible Account, unless the Mortgage Loan
Documents otherwise so require. The applicable Master Servicer shall apply the
funds deposited in such accounts in accordance with terms of the related
Mortgage Loan Documents, any lock-box, cash management or similar agreement and
the Servicing Standard.
SECTION 3.04. Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds Account, Companion
Note Custodial Accounts and Subordinate Note Custodial Accounts.
(a) Each of the Master Servicers shall segregate and hold all funds
collected and received by it in connection with the Pooled Mortgage Loans for
which it is the applicable Master Servicer separate and apart from its own funds
and general assets. In connection therewith, each Master Servicer shall
establish and maintain one or more segregated accounts (collectively, a
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes a Collection Account shall be
an Eligible Account. Each Master Servicer shall deposit or cause to be deposited
in its Collection Account, within one Business Day of receipt by it (in the case
of payments by Borrowers or other collections on the Serviced Pooled Mortgage
Loans as to which it acts as Master Servicer) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of such Master Servicer subsequent to the Closing Date with respect to
the Pooled Mortgage Loans as to which it is the applicable Master Servicer and
any Administered REO Properties acquired in respect thereof (other than in
respect of scheduled payments of principal and interest due and payable on such
Pooled Mortgage Loans on or before their respective Cut-off Dates (or, in the
case of a Replacement Pooled Mortgage Loan, on or before the related date of
substitution), which payments shall be delivered promptly to the related Pooled
Mortgage Loan Seller or its designee, with negotiable instruments endorsed as
necessary and appropriate without recourse):
(i) all payments (from whatever source) on account of principal
of such Serviced Pooled Mortgage Loans, including Principal Prepayments;
(ii) all payments (from whatever source) on account of interest
on such Serviced Pooled Mortgage Loans, including Default Interest and
Post-ARD Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or
late payment charges received with respect to such Serviced Pooled Mortgage
Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received with respect to such Serviced Pooled Mortgage
Loans and/or, insofar as such payments and/or proceeds represent amounts
allocable to reimburse Servicing Advances or pay Liquidation Expenses
and/or other servicing expenses in respect of the entire Mortgage Loan
Group of which any such Serviced Pooled Mortgage Loan is part;
(v) any amounts relating to such Serviced Pooled Mortgage Loans
and/or Administered REO Properties required to be deposited by such Master
Servicer or such Special Servicer pursuant to Section 3.07(b)
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in connection with losses resulting from a deductible clause in a blanket
or master force placed hazard insurance policy;
(vi) any amounts relating to an Administered REO Properties
required to be transferred from any REO Account pursuant to Section
3.16(c);
(vii) to the extent not otherwise included in another clause of
this Section 3.04(a), any payments collected in respect of Unliquidated
Advances on such Pooled Mortgage Loans or in respect of amounts previously
determined to constitute Nonrecoverable Advances;
(viii) insofar as they do not constitute Escrow Payments or
Reserve Funds, any amounts relating to such Serviced Pooled Mortgage Loans
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Borrower; and
(ix) in connection with the initial Collection Period, the
Closing Date Deposit Amount paid by the related Pooled Mortgage Loan Seller
for each Closing Date Deposit Mortgage Loan for which such Master Servicer
is the applicable Master Servicer (and, by its execution of this Agreement,
the applicable Master Servicer for each Closing Date Deposit Mortgage Loan
hereby acknowledges that it has so received and deposited the Closing Date
Deposit Amount for such Closing Date Deposit Mortgage Loan).
In addition, the applicable Master Servicer shall deposit into its
Collection Account, promptly upon receipt thereof if such Master Servicer is
also the related Non-Trust Master Servicer and otherwise within one Business Day
following receipt thereof, all remittances to the Trust under the Non-Trust
Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan or any
Non-Trust-Serviced REO Property. Furthermore, the applicable Master Servicer for
any Serviced Mortgage Loan Group shall deposit into its Collection Account,
within one Business Day following receipt thereof, all payments to the Trust
made by the Serviced Non-Pooled Mortgage Loan Noteholders in respect of
Nonrecoverable Advances or expenses pursuant to the terms of the related
Mortgage Loan Group Intercreditor Agreement.
Furthermore, each Master Servicer shall deposit in its Collection
Account any amounts required to be deposited by such Master Servicer pursuant to
Section 3.06, as and when required by such section, in connection with losses
incurred with respect to Permitted Investments of funds held in such Collection
Account.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into its Collection Account any amount that such
Master Servicer would be authorized to withdraw immediately from such Collection
Account in accordance with the terms of Section 3.05 and shall be entitled to
instead pay such amount directly to the Person(s) entitled thereto.
The foregoing requirements for deposit in a Collection Account shall
be exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earn-out fees, extension fees, modification fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and other fees and amounts collected from Borrowers that
constitute Additional Master Servicing Compensation and/or Additional Special
Servicing Compensation, need not be deposited by either Master Servicer in its
Collection Account. Each Master Servicer shall promptly, and in any event within
one Business Day, deliver to the applicable Special Servicer any of the
foregoing items received by it with respect to any Pooled Mortgage Loan, if and
to the extent that such items constitute Additional Special Servicing
Compensation payable to the applicable Special Servicer. If either Master
Servicer shall deposit in its Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Collection
Account, any provision herein to the contrary notwithstanding.
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Upon receipt of any of the amounts described in clauses (i) through
(iv) and (vii) through (viii) of the first paragraph of this Section 3.04(a)
with respect to any Serviced Pooled Mortgage Loan, the applicable Special
Servicer shall promptly, but in no event later than one Business Day after
receipt, remit such amounts to the applicable Master Servicer for deposit into
such Master Servicer's Collection Account, unless the applicable Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. With respect
to any such amounts paid by check to the order of the applicable Special
Servicer, each Special Servicer shall endorse such check to the order of the
applicable Master Servicer (in its capacity as such), without recourse,
representation or warranty, unless each Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement. Any such amounts received by the
applicable Special Servicer with respect to an Administered REO Property shall
be deposited by such Special Servicer into the related REO Account and remitted
to the applicable Master Servicer for deposit into such Master Servicer's
Collection Account pursuant to Section 3.16(c).
(b) The Certificate Administrator shall establish and maintain one or
more segregated accounts (collectively, the "Distribution Account"), to be held
on behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Distribution Account shall
be an Eligible Account. The Certificate Administrator shall, as a bookkeeping
matter, establish and maintain two sub-accounts of the Distribution Account (i)
one of which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be
deemed to be held in trust for the benefit of the Holders of the REMIC III
Certificates and the Class R Certificates, and (ii) one of which sub-accounts
(such sub-account, the "Class V Sub-Account") shall be deemed to be held in
trust for the benefit of the Holders of the Class V Certificates. Not later than
1:00 p.m. (New York City time) on each Master Servicer Remittance Date, each
Master Servicer shall deliver to the Certificate Administrator, for deposit in
the Distribution Account, an aggregate amount of immediately available funds
equal to the Master Servicer Remittance Amount with respect to such Master
Servicer for such Master Servicer Remittance Date. Immediately upon deposit of a
Master Servicer Remittance Amount into the Distribution Account, any portion
thereof that represents any Post-ARD Additional Interest related to the ARD
Mortgage Loans and/or any successor REO Mortgage Loans with respect thereto
included in the Mortgage Pool shall be deemed to have been deposited into the
Class V Sub-Account, and the remaining portion thereof shall be deemed to have
been deposited into the REMIC Sub-Account. In addition, each Master Servicer
shall, as and when required hereunder, deliver to the Certificate Administrator
for deposit in the Distribution Account any P&I Advances and Compensating
Interest Payments required to be made by such Master Servicer hereunder.
Furthermore, any amounts paid by any party hereto to indemnify the Trust Fund
pursuant to any provision hereof shall be delivered to the Certificate
Administrator for deposit in the Distribution Account. The Certificate
Administrator shall, upon receipt, deposit in the Distribution Account any and
all amounts received or, pursuant to Section 4.03, advanced by the Trustee that
are required by the terms of this Agreement to be deposited therein. As and when
required pursuant to Section 3.05(c), the Certificate Administrator shall
transfer Interest Reserve Amounts in respect of the Interest Reserve Loans from
the Interest Reserve Account to the Distribution Account. Furthermore, as and
when required pursuant to Section 3.05(d), the Certificate Administrator shall
transfer monies from the Excess Liquidation Proceeds Account to the Distribution
Account. The Certificate Administrator shall also deposit in the Distribution
Account any amounts required to be deposited by the Certificate Administrator
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Distribution Account. If the
Certificate Administrator shall deposit in the Distribution Account any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Distribution Account, any provision herein to the contrary
notwithstanding.
(c) The Certificate Administrator shall establish and maintain one or
more accounts (collectively, the "Interest Reserve Account") to be held on
behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders; provided that, subject to the next paragraph, the Interest
Reserve Account may be a sub-account of the Distribution Account. Each account
that constitutes the Interest Reserve Account shall be an Eligible Account. On
the Distribution Date in January (except during a leap year) and February of
each calendar year, commencing in 2007, prior to any distributions being made
with respect to the Certificates on such Distribution Date, the Certificate
Administrator shall, with respect to each Interest Reserve Loan, withdraw from
the Distribution Account and deposit in the Interest Reserve Account an amount
equal to the Interest Reserve Amount, if any, in respect of such Interest
Reserve Loan for such
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Distribution Date; provided that no such transfer of monies from the
Distribution Account to the Interest Reserve Account shall be made on the Final
Distribution Date. The Certificate Administrator shall also deposit in the
Interest Reserve Account from its own funds any amounts required to be deposited
by the Certificate Administrator pursuant to Section 3.06 in connection with
losses incurred with respect to Permitted Investments of funds held in the
Interest Reserve Account.
Notwithstanding that the Interest Reserve Account may be a sub-account
of the Distribution Account for reasons of administrative convenience, the
Interest Reserve Account and the Distribution Account shall, for all purposes of
this Agreement (including the obligations and responsibilities of the
Certificate Administrator hereunder), be considered to be and shall be required
to be treated as, separate and distinct accounts.
(d) If any Excess Liquidation Proceeds are received, the Certificate
Administrator shall establish and maintain one or more accounts (collectively,
the "Excess Liquidation Proceeds Account") to be held on behalf and in the name
of the Trustee in trust for the benefit of the Certificateholders. Each account
that constitutes the Excess Liquidation Proceeds Account shall be an Eligible
Account. On each Master Servicer Remittance Date, each Master Servicer shall
withdraw from its Collection Account and remit to the Certificate Administrator
for deposit in the Excess Liquidation Proceeds Account all Excess Liquidation
Proceeds received by it during the Collection Period ending on the Determination
Date immediately prior to such Master Servicer Remittance Date. The Certificate
Administrator shall also deposit in the Excess Liquidation Proceeds Account from
its own funds any amounts required to be deposited by the Certificate
Administrator pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Excess Liquidation
Proceeds Account.
(e) The applicable Master Servicer shall segregate and hold all funds
collected and received by it in connection with the Serviced Non-Pooled Pari
Passu Companion Loans (if any) separate and apart from its own funds and general
assets. In connection therewith, such Master Servicer shall establish and
maintain one or more segregated accounts (collectively, the related "Companion
Note Custodial Account"), in which the funds described below are to be deposited
and held on behalf of the related Serviced Non-Pooled Pari Passu Companion
Noteholder (and which accounts may be maintained as separately identified
sub-accounts of the applicable Collection Account, provided that for all
purposes of this Agreement (including the obligations of the applicable Master
Servicer hereunder) such accounts shall be considered to be and shall be
required to be treated as separate and distinct from the applicable Collection
Account). Each Companion Note Custodial Account shall be an Eligible Account.
The applicable Master Servicer shall deposit or cause to be deposited in each
Companion Note Custodial Account, within one Business Day of receipt by it or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of such Master Servicer in respect of the related Serviced
Non-Pooled Pari Passu Companion Loan subsequent to the Closing Date:
(i) all payments (from whatever source) on account of principal
of the Non-Pooled Pari Passu Companion Loan, including Principal
Prepayments;
(ii) all payments (from whatever source) on account of interest
on the Non-Pooled Pari Passu Companion Loan, including Default Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges
received in respect of the Non-Pooled Pari Passu Companion Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of, and allocable as interest
(including Default Interest) on, principal of or Prepayment Premiums or
Yield Maintenance Charges with respect to, the subject Serviced Non-Pooled
Pari Passu Companion Loan (or any successor REO Mortgage Loan with respect
thereto);
(v) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the applicable Companion
Note Custodial Account;
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(vi) any amounts required to be deposited by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.07(b) in connection with losses on the Non-Pooled Pari Passu Companion
Loan (or any successor REO Mortgage Loan with respect thereto) resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts required to be transferred to the applicable
Companion Note Custodial Account from the REO Account pursuant to Section
3.16(c); and
(viii) any other amounts received and applied on the related
Non-Pooled Pari Passu Companion Loan pursuant to the related Mortgage Loan
Group Intercreditor Agreement.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the applicable Companion Note Custodial Account
any amount that such Master Servicer would be authorized to withdraw immediately
from such Companion Note Custodial Account in accordance with the terms of
Section 3.05 and shall be entitled to instead pay such amount directly to the
Person(s) entitled thereto).
The foregoing requirements for deposit in each Companion Note
Custodial Account shall be exclusive. Without limiting the generality of the
foregoing, actual payments from the applicable Borrower in the nature of Escrow
Payments, assumption fees, assumption application fees, earn-out fees, extension
fees, modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from the applicable Borrower that constitute Additional Master
Servicing Compensation and/or Additional Special Servicing Compensation, need
not be deposited by the applicable Master Servicer in the applicable Companion
Note Custodial Account. The applicable Master Servicer shall promptly deliver to
the applicable Special Servicer any of the foregoing items received by it with
respect to a Serviced Non-Pooled Pari Passu Companion Loan, if and to the extent
that such items constitute Additional Special Servicing Compensation with
respect to such Serviced Non-Pooled Pari Passu Companion Loan. If the applicable
Master Servicer shall deposit in the applicable Companion Note Custodial Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the applicable Companion Note Custodial Account, any provision
herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) of the first paragraph of this Section 3.04(e), the applicable Special
Servicer shall promptly, but in no event later than two (2) Business Days after
receipt, remit such amounts to the applicable Master Servicer for deposit into
the applicable Companion Note Custodial Account, unless the applicable Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or because of
another appropriate reason that is consistent with the Servicing Standard. With
respect to any such amounts paid by check to the order of the applicable Special
Servicer, the Special Servicer shall endorse such check to the order of the
applicable Master Servicer (in its capacity as such), without recourse,
representation or warranty, unless the applicable Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or because of
another appropriate reason that is consistent with the Servicing Standard. Any
such amounts received by the applicable Special Servicer with respect to an REO
Property relating to the applicable Mortgage Loan Group shall be deposited by
the applicable Special Servicer into the REO Account and, insofar as such
amounts are allocable as interest on, principal of, or Prepayment Premiums or
Yield Maintenance Charges with respect to the Serviced Non-Pooled Pari Passu
Companion Loan or any successor REO Mortgage Loan with respect thereto, shall be
remitted to the applicable Master Servicer for deposit into the applicable
Companion Note Custodial Account pursuant to Section 3.16(c) (subject to the
terms of the related Mortgage Loan Group Intercreditor Agreement). Any
remittances by a Special Servicer under this paragraph may be made as part of an
aggregate remittance under this paragraph, the final paragraph of Section
3.04(a) and/or the final paragraph of Section 3.04(f).
To the extent of the applicable Non-Pooled Pari Passu Companion
Noteholder's interest therein, each Companion Note Custodial Account shall be
treated as an "outside reserve fund" within the meaning of the REMIC Provisions,
beneficially owned by the related Non-Pooled Pari Passu Companion Noteholder,
who shall be liable for any
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tax on its share of any reinvestment income thereon, and who shall be deemed to
receive any related reimbursements from the Trust Fund.
(f) The applicable Master Servicer shall segregate and hold all funds
collected and received by it in connection with the Serviced Non-Pooled
Subordinate Loans separate and apart from its own funds and general assets. In
connection therewith, such Master Servicer shall establish and maintain one or
more segregated accounts (each, a "Subordinate Note Custodial Account"), in
which the funds described below are to be deposited and held on behalf of the
related Serviced Non-Pooled Subordinate Noteholder (and which accounts may be
maintained as separately identified sub-accounts of the applicable Collection
Account or, provided that for all purposes of this Agreement (including the
obligations of the applicable Master Servicer hereunder) such accounts shall be
considered to be and shall be required to be treated as separate and distinct
from the applicable Collection Account). Notwithstanding the foregoing, in no
event shall the Master Servicer be required to maintain an account separate from
or that is a sub-account of the Collection Account in connection with any
Serviced Non-Pooled Subordinate Loan that is included in a related Mortgage Loan
Group (if any) that includes a PCF Pooled Mortgage Loan or PCFII Pooled Mortgage
Loan, provided, however, that notwithstanding the absence of any such separate
account or sub-account, the applicable Master Servicer, for the benefit of the
Trust (as the holder of the related Pooled Mortgage Loan), shall make deposits
to and remittances and withdrawals from the Collection Account in a manner that
is consistent with the economic effect to the Trust (as the holder of the
related Pooled Mortgage Loan) of the deposit, remittance and withdrawal
provisions of this Section 3.04(f) and Section 3.05(f). Each Subordinate Note
Custodial Account shall be an Eligible Account. The applicable Master Servicer
shall deposit or cause to be deposited in each Subordinate Note Custodial
Account, within one Business Day of receipt by it or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of such Master Servicer in respect of the related Serviced Non-Pooled
Subordinate Loan subsequent to the Closing Date:
(i) all payments (from whatever source) on account of principal
of the applicable Serviced Non-Pooled Subordinate Loan, including Principal
Prepayments;
(ii) all payments (from whatever source) on account of interest
on the applicable Serviced Non-Pooled Subordinate Loan, including Default
Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges
received in respect of the applicable Serviced Non-Pooled Subordinate Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of, and allocable as interest
(including Default Interest) on, principal of or Prepayment Premiums or
Yield Maintenance Charges with respect to, the applicable Serviced
Subordinate Loan (or any successor REO Mortgage Loan with respect thereto);
(v) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the applicable
Subordinate Note Custodial Account;
(vi) any amounts required to be deposited by the applicable
Master Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses on the applicable Serviced Non-Pooled Subordinate
Loan (or any successor REO Mortgage Loan with respect thereto) resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts required to be transferred to the applicable
Subordinate Note Custodial Account from the related REO Account pursuant to
Section 3.16(c); and
(viii) any other amounts received and applied on the related
Serviced Non-Pooled Subordinate Loan pursuant to the related Mortgage Loan
Group Intercreditor Agreement.
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Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the applicable Subordinate Note Custodial Account
any amount that such Master Servicer would be authorized to withdraw immediately
from such Subordinate Note Custodial Account in accordance with the terms of
Section 3.05 and shall be entitled to instead pay such amount directly to the
Person(s) entitled thereto).
The foregoing requirements for deposit in the applicable Subordinate
Note Custodial Account shall be exclusive. Without limiting the generality of
the foregoing, actual payments from the applicable Borrower in the nature of
Escrow Payments, assumption fees, assumption application fees, earn-out fees,
extension fees, modification fees, charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and other
fees and amounts collected from the applicable Borrower that constitute
Additional Master Servicing Compensation and/or Additional Special Servicing
Compensation, need not be deposited by the applicable Master Servicer in the
applicable Subordinate Note Custodial Account. The applicable Master Servicer
shall promptly deliver to the applicable Special Servicer any of the foregoing
items received by it with respect to the applicable Serviced Non-Pooled
Subordinate Loan, if and to the extent that such items constitute Additional
Special Servicing Compensation with respect to the applicable Serviced
Non-Pooled Subordinate Loan. If the applicable Master Servicer shall deposit in
the applicable Subordinate Note Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the applicable
Subordinate Note Custodial Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) of the first paragraph of this Section 3.04(f), the applicable Special
Servicer shall promptly, but in no event later than two (2) Business Days after
receipt, remit such amounts to the applicable Master Servicer for deposit into
the applicable Subordinate Note Custodial Account, unless the applicable Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or because of
another appropriate reason that is consistent with the Servicing Standard. With
respect to any such amounts paid by check to the order of the Special Servicer,
such Special Servicer shall endorse such check to the order of the applicable
Master Servicer (in its capacity as such), without recourse, representation or
warranty, unless such Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or because of another appropriate reason that is
consistent with the Servicing Standard. Any such amounts received by the
applicable Special Servicer with respect to an REO Property relating to the
applicable Mortgage Loan Group shall be deposited by such Special Servicer into
the related REO Account and, insofar as such amounts are allocable as interest
on, principal of, or Prepayment Premiums or Yield Maintenance Charges with
respect to the applicable Serviced Non-Pooled Subordinate Loan or any successor
REO Mortgage Loan with respect thereto, shall be remitted to the applicable
Master Servicer for deposit into the applicable Subordinate Note Custodial
Account pursuant to Section 3.16(c) (subject to the terms of the related
Mortgage Loan Group Intercreditor Agreement). Any remittances by a Special
Servicer under this paragraph may be made as part of an aggregate remittance
under this paragraph, the final paragraph of Section 3.04(a) and/or the final
paragraph of Section 3.04(e).
To the extent of the applicable Serviced Non-Pooled Subordinate
Noteholder's interest therein, the Subordinate Note Custodial Account shall be
treated as an "outside reserve fund" within the meaning of the REMIC Provisions,
beneficially owned by the related Serviced Non-Pooled Subordinate Noteholder,
who shall be liable for any tax on its share of any reinvestment income thereon,
and who shall be deemed to receive any related reimbursements from the Trust
Fund.
(g) Funds in a Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account, each
Companion Note Custodial Account and/or each Subordinate Note Custodial Account
may be invested in Permitted Investments in accordance with the provisions of
Section 3.06. Each Master Servicer shall give notice to the other parties hereto
of the location of its Collection Account as of the Closing Date and of the new
location of its Collection Account prior to any change thereof. With respect to
each Serviced Mortgage Loan Group, the applicable Master Servicer shall give
notice to the other parties hereto and to each related Serviced Non-Pooled
Mortgage Loan Noteholder related to a Serviced Mortgage Loan Group of the
location of any related Companion Note Custodial Account and/or Subordinate Note
Custodial Account maintained by it as of the Closing Date, of the
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establishment of any related Companion Note Custodial Account and/or Subordinate
Note Custodial Account after the Closing Date and of the new location of such
account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the
Distribution Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account, the Companion Note Custodial
Accounts and the Subordinate Note Custodial Accounts.
(a) Subsection (I). Each Master Servicer may, from time to time, make
withdrawals from its Collection Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Certificate Administrator for deposit in the
Distribution Account (A) the Master Servicer Remittance Amount with respect
to such Master Servicer for each Master Servicer Remittance Date and (B)
any amounts that may be applied by such Master Servicer to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee or itself, as applicable, in that
order, for xxxxxxxxxxxx X&X Advances made by such Person (in each case,
with its own funds) with respect to those Pooled Mortgage Loans as to which
such Master Servicer is the applicable Master Servicer and/or any successor
REO Pooled Mortgage Loans in respect thereof, such Master Servicer's and
the Trustee's, as the case may be, respective rights to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other than a
Nonrecoverable P&I Advance, which is reimbursable pursuant to clause (vi)
below) being limited to (subject to the operation of subsection (II)(iii)
of this Section 3.05(a)) amounts on deposit in such Collection Account that
represent Late Collections of interest and principal Received by the Trust
in respect of the particular Pooled Mortgage Loan or REO Pooled Mortgage
Loan as to which such P&I Advance was made (net of related Master Servicing
Fees);
(iii) to pay itself earned and unpaid Master Servicing Fees with
respect to those Pooled Mortgage Loans as to which it is the applicable
Master Servicer and/or any successor REO Pooled Mortgage Loans in respect
thereof, such Master Servicer's right to payment pursuant to this clause
(iii) with respect to any such Pooled Mortgage Loan or REO Pooled Mortgage
Loan being limited to amounts on deposit in such Collection Account that
are allocable as interest on such Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be;
(iv) to pay the applicable Special Servicer (or, if applicable,
any predecessor thereto) earned and unpaid Special Servicing Fees, Workout
Fees and Liquidation Fees to which it is entitled in respect of each
Specially Serviced Pooled Mortgage Loan, Corrected Pooled Mortgage Loan
and/or REO Pooled Mortgage Loan pursuant to, and from the sources
contemplated by, Section 3.11(c), but only if and to the extent that such
Special Servicing Fees, Workout Fees and Liquidation Fees relate to Pooled
Mortgage Loans and/or related REO Properties as to which such Master
Servicer is the applicable Master Servicer (and in no event shall any such
payment be made by the applicable Master Servicer in respect of a
Non-Trust-Serviced Pooled Mortgage Loan);
(v) to reimburse the Trustee, the applicable Special Servicer or
itself, as applicable, in that order, for any unreimbursed Servicing
Advances made thereby (in each case, with its own funds) with respect to
those Mortgage Loans and related REO Properties as to which such Master
Servicer is the applicable Master Servicer, such Master Servicer's, the
applicable Special Servicer's and the Trustee's, as the case may be,
respective rights to reimbursement pursuant to this clause (v) with respect
to any Servicing Advance (other than a Nonrecoverable Servicing Advance,
which is reimbursable pursuant to clause (vi) below) being limited to
(subject to the operation of subsection (II)(iii) of this Section 3.05(a))
amounts on deposit in such Collection Account that represent (A) payments
made by the related Borrower that are allocable to cover the item in
respect of which such Servicing Advance was made, and/or (B) Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable,
REO Revenues Received by the Trust in respect of the particular Pooled
Mortgage Loan or related REO Property as to which such Servicing Advance
was made;
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(vi) to reimburse the Trustee, the applicable Special Servicer or
itself, as applicable, in that order, out of such general collections
(subject to the operation of subsection (II)(iv) of this Section 3.05(a)
below) on the Mortgage Loans and any REO Properties as are then on deposit
in such Collection Account, for any unreimbursed Nonrecoverable Advances
made thereby with respect to any of the Mortgage Loans and/or related REO
Properties as to which such Master Servicer is the applicable Master
Servicer;
(vii) to pay the Trustee, the applicable Special Servicer or
itself, as applicable, in that order, any unpaid Advance Interest accrued
on Advances made by such Person with respect to Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer, such payment to be made, as and to the extent contemplated by
Section 3.31, out of amounts on deposit in such Collection Account that
represent Default Charges Received by the Trust on the Mortgage Loans or
REO Mortgage Loans as to which the subject Advance was made;
(viii) to the extent that such Master Servicer has reimbursed or
is reimbursing the Trustee, the applicable Special Servicer or itself, as
applicable, for any unreimbursed Advance with respect to any Mortgage Loan
or REO Property as to which such Master Servicer is the applicable Master
Servicer (regardless of whether such reimbursement is pursuant to clause
(ii), (v) or (vi) above, pursuant to Section 3.03(c) or Section 3.03(d) or
pursuant to subsection (II) of this Section 3.05(a)), and insofar as
payment has not already been made out of related Default Charges, and the
related Default Charges then on deposit in such Collection Account and
available therefor are not sufficient to make such payment, pursuant to
clause (vii) above, to pay the Trustee, the applicable Special Servicer or
itself, as applicable, in that order, first out of amounts on deposit in
such Collection Account that represent the remaining Liquidation Proceeds,
Insurance Proceeds and/or Condemnation Proceeds, if any, from the Pooled
Mortgage Loan or REO Property to which the Advance relates, then out of
such general collections (subject to the operation of subsection (II) of
this Section 3.05(a) below) on the Mortgage Loans and any REO Properties as
are then on deposit in such Collection Account, any related Advance
Interest accrued and payable on the portion of such Advance so reimbursed
or being reimbursed;
(ix) to pay (A) any outstanding expenses that were incurred by
the applicable Special Servicer in connection with its inspecting, pursuant
to Section 3.12(a), any Administered REO Property or any Mortgaged Property
securing a Specially Serviced Pooled Mortgage Loan as to which such Master
Servicer is the applicable Master Servicer or (B) any other outstanding
expenses incurred on behalf of the Trust with respect to any Mortgage Loan
or related REO Property as to which such Master Servicer is the applicable
Master Servicer (other than Advance Interest that is paid pursuant to
clause (vii) above, and other than Special Servicing Fees, Workout Fees and
Liquidation Fees, which are covered by clause (iv) above) that will likely
otherwise become Additional Trust Fund Expenses, such payment to be made
from amounts on deposit in such Collection Account that represent Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds from the related
Mortgage Loan or REO Property;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in such
Collection Account from time to time;
(xi) to pay any unpaid Liquidation Expenses incurred with respect
to any Serviced Pooled Mortgage Loan or related Administered REO Property
as to which such Master Servicer is the applicable Master Servicer, such
payments to be made, first, out of amounts on deposit in such Collection
Account that represent Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds and, if applicable, REO Revenues received with respect
to such Pooled Mortgage Loan or REO Property, as the case may be, and then,
out of such general collections on the Pooled Mortgage Loans and any REO
Properties as are then on deposit in such Collection Account;
(xii) to pay, subject to and in accordance with Section 3.11(i),
out of such general collections on the Pooled Mortgage Loans and any
related REO Properties as are then on deposit in such Collection Account,
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servicing expenses related to the Pooled Mortgage Loans and related REO
Properties as to which such Master Servicer is the applicable Master
Servicer, which expenses would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xiii) to pay, first out of amounts on deposit in such Collection
Account that represent related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, and then, out of such general
collections on the Pooled Mortgage Loans and any related REO Properties as
are then on deposit in such Collection Account, costs and expenses incurred
by the Trust pursuant to Section 3.09(c) with respect to any Serviced
Pooled Mortgage Loan or Administered REO Property as to which such Master
Servicer is the applicable Master Servicer (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance);
(xiv) to pay itself, the applicable Special Servicer, the
Depositor, the Certificate Administrator, the Tax Administrator, the
Trustee, or any of their respective directors, officers, members, managers,
employees and agents, as the case may be, first out of amounts on deposit
in such Collection Account that represent related Liquidation Proceeds,
Insurance Proceeds and/or Condemnation Proceeds, if any, and then, out of
such general collections on the Pooled Mortgage Loans and any REO
Properties as are then on deposit in such Collection Account, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b) or Section 8.13, as applicable, but only if and to the
extent that such amounts relate to Pooled Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer;
(xv) to pay, first out of amounts on deposit in such Collection
Account that represent related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, and then, out of such general
collections on the Pooled Mortgage Loans and any REO Properties as are then
on deposit in such Collection Account, (A) any reasonable out-of-pocket
cost or expense (including the reasonable fees of tax accountants and
attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii) in
connection with providing advice to the applicable Special Servicer with
respect to any REO Property as to which such Master Servicer is the
applicable Master Servicer, and (B) to the extent not otherwise advanced by
such Master Servicer, any fees and/or expenses payable or reimbursable, as
the case may be, in accordance with Section 3.18(c), to the applicable
Master Servicer or the Trustee or an Independent third party for
confirming, in accordance with such Section 3.18(c), a Fair Value
determination made with respect to any Specially Designated Defaulted
Pooled Mortgage Loan as to which such Master Servicer is the applicable
Master Servicer;
(xvi) to pay itself, the applicable Special Servicer, the
Certificate Administrator, the Trustee or the Depositor, as the case may
be, any amount related to the Pooled Mortgage Loans and/or related REO
Properties as to which such Master Servicer is the applicable Master
Servicer, that is specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement and to
which reference is not made in any other clause of this Section 3.05(a), it
being acknowledged that this clause (xvi) shall not be construed to modify
any limitation otherwise set forth in this Agreement on the time at which
any Person is entitled to payment or reimbursement of any amount or the
funds from which any such payment or reimbursement is permitted to be made;
(xvii) to pay itself, the applicable Special Servicer, any Pooled
Mortgage Loan Seller, a Controlling Class Certificateholder, any Non-Pooled
Subordinate Noteholder or any other particular Person, as the case may be,
with respect to any Pooled Mortgage Loan as to which such Master Servicer
is the applicable Master Servicer and that was previously purchased or
otherwise removed from the Trust Fund by such Person pursuant to or as
contemplated by this Agreement, all amounts received on such Pooled
Mortgage Loan subsequent to the date of purchase or other removal;
(xviii) to pay to the applicable Pooled Mortgage Loan Seller any
amounts on deposit in such Collection Account that represent Monthly
Payments due on the respective Pooled Mortgage Loans on or before
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the Cut-off Date or, in the case of a Replacement Pooled Mortgage Loan, on
or before the date on which such Replacement Pooled Mortgage Loan was added
to the Trust Fund;
(xix) in connection with a Non-Trust-Serviced Pooled Mortgage
Loan, to pay, out of such general collections on the Pooled Mortgage Loans
and REO Properties as are then on deposit in such Collection Account, to
the related Non-Trust Master Servicer, the related Non-Trust Special
Servicer and/or the holder of the related Non-Pooled Pari Passu Companion
Loan, any amount reimbursable to such party by the holder of such
Non-Trust-Serviced Pooled Mortgage Loan pursuant to the terms of the
related Mortgage Loan Group Intercreditor Agreement;
(xx) to transfer any Excess Liquidation Proceeds on deposit in
such Collection Account to the Excess Liquidation Proceeds Account in
accordance with Section 3.04(d);
(xxi) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Collection Account in error; and
(xxii) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
provided, however, that if any expense, cost, reimbursement or other amount
otherwise permitted to be withdrawn from a Collection Account pursuant to clause
(vi) (relating to Nonrecoverable Advances), clause (ix) (relating to certain
expenses), clause (xiii) (relating to certain environmental costs) or clause
(xiv) (relating to certain indemnification and similar expenses) relates to a
Mortgage Loan in a Serviced Mortgage Loan Group, then such payment shall be
made, first, from amounts in the related Subordinate Note Custodial Account (if
any) and, then, from other collections with respect to such Serviced Mortgage
Loan Group on deposit in the relevant Collection Account and (unless the
expense, cost, reimbursement or other amount is a Nonrecoverable P&I Advance, in
which case (for avoidance of doubt) the payment in reimbursement thereof (after
the required withdrawal from the related Subordinate Note Custodial Account (if
any)) shall be made solely from the relevant Collection Account) any related
Companion Note Custodial Account(s) (if any) (withdrawals from such Collection
Account and related Companion Note Custodial Account are to be made pro rata
according to the related Mortgage Loan Group Intercreditor Agreement and based
on the respective outstanding principal balances of the related Pooled Mortgage
Loan and the related Serviced Non-Pooled Pari Passu Companion Loan), prior to
payment from funds in such Collection Account that are unrelated to such
Serviced Mortgage Loan Group.
In addition, but subject to the succeeding paragraphs of this Section
3.05(a), if at any time a Master Servicer is entitled to make a payment,
reimbursement or remittance from its Collection Account, the payment,
reimbursement or remittance can be made from any funds on deposit in such
Collection Account (including pursuant to clause (vi) of the preceding
paragraph) and the amounts on deposit in such Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) are insufficient to satisfy such payment, reimbursement or remittance and
the amount on deposit in the other Master Servicer's Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) is sufficient to make such payment, reimbursement or remittance, then
such other Master Servicer shall withdraw funds from its Collection Account and
make such payment, reimbursement or remittance within three (3) Business Days
following a written request therefor from the first Master Servicer, which
request is accompanied by an Officer's Certificate (1) either (x) setting forth
that the requesting Master Servicer, the applicable Special Servicer, the
Trustee, the Certificate Administrator or another particular Person, as
applicable, is entitled to such payment, reimbursement or remittance (and
setting forth the nature and amount of such payment, reimbursement or remittance
and the party entitled thereto) or (y) forwarding a copy of any Officer's
Certificate or other information provided by the applicable Special Servicer,
the Trustee, the Certificate Administrator or another particular Person, as the
case may be, that sets forth that such Person is entitled to such payment,
reimbursement or remittance (and the nature and amount of such payment,
reimbursement or remittance and the party entitled thereto) and (2) setting
forth that the requesting Master Servicer does not then have on deposit in its
Collection Account funds sufficient for such reimbursement.
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If amounts on deposit in either Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in such Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xx) of
the second preceding paragraph above, then the corresponding withdrawals from
such Collection Account shall be made in the following priority and subject to
the following rules: (x) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (y) if the payment, reimbursement or
remittance can be made from any funds on deposit in such Collection Account,
then (following any withdrawals made from such Collection Account in accordance
with the immediately preceding clause (x) of this sentence) such payment,
reimbursement or remittance shall be made from the general funds remaining on
deposit in such Collection Account on a pro rata basis with any and all other
payments, reimbursements or remittances to be made from such general funds;
provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of a Collection Account pursuant to any of
clauses (ii), (v) and (vi) of the first paragraph of this Section 3.05(a)(I),
and any payments of interest thereon out of a Collection Account pursuant to
either of clauses (vii) and (viii) of the first paragraph of this Section
3.05(a)(I), shall be made (to the extent of their respective entitlements to
such reimbursements and/or payments): first, to the Trustee; and second, pro
rata, to the applicable Master Servicer and the applicable Special Servicer.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xx) of the first paragraph of this Section 3.05(a)(I).
Each Master Servicer shall pay to the applicable Special Servicer from such
Master Servicer's Collection Account on each Master Servicer Remittance Date
amounts permitted to be paid to the applicable Special Servicer therefrom based
upon an Officer's Certificate received from such Special Servicer on the first
Business Day following the immediately preceding Determination Date, describing
the item and amount to which such Special Servicer is entitled. Each Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. Each Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property as to which it is the applicable Special Servicer on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request thereby
for withdrawal from a Collection Account.
Subsection (II). The provisions of this subsection (II) of this
Section 3.05(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 3.05(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 making of three monthly
payments under its modified terms, would then constitute) a Corrected
Mortgage Loan, together with (to the extent theretofore accrued and unpaid)
Advance Interest thereon, is not pursuant to the operation of the
provisions of Section 3.05(a)(I) reimbursed to the Person who made such
Advance on or before the date, if any, on which such Mortgage Loan becomes
a Corrected Mortgage Loan (or, but for the making of three monthly payments
under its modified terms, would constitute a Corrected 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 (to the extent theretofore accrued and
unpaid) any Advance Interest thereon, together with (to the extent it
remains unpaid) any further Advance Interest that accrues on the
unreimbursed portion of such Advance from time to time in accordance with
the other provisions of this Agreement. That any amount constitutes all or
a portion of any Workout-Delayed Reimbursement Amount shall not in any
manner limit the right of any Person hereunder to determine that such
amount instead constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below
(subject to the terms, conditions and limitations thereof) sets forth the
terms of and conditions to the right of a Person to be reimbursed
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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
3.05(a)(I) above (construed without regard to the reference therein to this
subsection except that it is nonetheless hereby acknowledged that, for
purposes of "Late Collections" in subsection 3.05(a)(I), funds received on
the related Mortgage Loan shall be applied in accordance with the terms of
the applicable modification even though such application may result in an
Advance continuing to be outstanding when the Borrower is current in its
payments under the terms of the Mortgage Loan as modified). Subsection (iv)
below (subject to the terms, conditions and limitations thereof) authorizes
the Master Servicer, under certain circumstances, to abstain from
reimbursing itself (or, if applicable, the Trustee to abstain from
obtaining reimbursement) for Nonrecoverable Advances 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 a 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 applicable Master Servicer, the applicable Special Servicer and the
Trustee, as applicable, shall be entitled to reimbursement and payment
(and, notwithstanding any contrary provision of subsection (I) above, shall
be entitled to withdraw and pay to itself the amount of such reimbursement
and payment) for all Workout-Delayed Reimbursement Amounts in each
Collection Period (and it is again hereby acknowledged that, for purposes
of "Late Collections" in subsection 3.05(a)(I), funds received on the
related Mortgage Loan shall be applied in accordance with the terms of the
applicable modification even though such application may result in an
Advance continuing to be outstanding when the Borrower is current in its
payments under the terms of the Mortgage Loan as modified); provided,
however, that the aggregate amount (for all such Persons collectively) of
such reimbursements and payments from amounts advanced or collected on the
Mortgage Pool in such Collection Period shall not exceed (and the
reimbursement and payment shall be made from) the aggregate principal
portions of P&I Advances and principal collections and recoveries on the
Mortgage Pool for such Collection Period contemplated by clauses (i)
through (v) of the definition of "Unadjusted Principal Distribution
Amount", net of the aggregate deduction amounts for (x) Special Servicing
Fees, Liquidation Fees and/or Advance Interest with respect to Pooled
Mortgage Loans or REO Properties that were paid hereunder from a source
other than related Default Charges during the related Collection Period, as
described by clause (II)(A) of the definition of "Principal Distribution
Amount", and (y) Nonrecoverable Advances (and accrued and unpaid Advance
Interest thereon) that were reimbursed or paid during the related
Collection Period from principal collections on the Mortgage Pool, as
described by clause (II)(C) of the definition of "Principal Distribution
Amount" and pursuant to subsection (iv) of this Section 3.05(a)(II). As and
to the extent provided in clause (II)(B) 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
aggregate principal collections pursuant to the preceding sentence.
Any collections (as applied under Section 1.03) received on or in
respect of the Pooled Mortgage Loans during a Collection Period that, in
each case, represents a delinquent amount as to which an Advance had been
made, which Advance was previously reimbursed during the Collection Period
for a prior Distribution Date as part of a Workout-Delayed Reimbursement
Amount, shall be added to and constitute a part of the Principal
Distribution Amount for the related Distribution Date (pursuant to clause
(I)(B) of the definition of "Principal Distribution Amount") to the extent
of all Workout-Delayed Reimbursement Amounts on or in respect of such
respective Mortgage Loan that were reimbursed from collections of principal
on the Mortgage Pool in all prior Collection Periods pursuant to the
preceding paragraph.
The Certificate Administrator (and, with respect to Advances made
by a Master Servicer, the Trustee or any Fiscal Agent) shall be entitled to
rely conclusively upon any direction or notice received from
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either Master Servicer in connection with any determination made by such
Master Servicer pursuant to the foregoing provisions of this Section
3.05(a)(II)(iii) and shall not be obligated to independently verify,
monitor or oversee any such determination.
(iv) Sole Option to Abstain from Reimbursements of Certain
Nonrecoverable Advances. To the extent that Section 3.05(a)(I) (as
construed without regard to this subsection (iv)) otherwise entitles a
Master Servicer, a Special Servicer or the Trustee to reimbursement for any
Nonrecoverable Advance (or payment of Advance Interest thereon from a
source other than Default Charges on the related Mortgage Loan) during any
Collection Period, then, notwithstanding any contrary provision of
subsection (I) above, (a) to the extent that one or more such
reimbursements and payments of Nonrecoverable Advances (and such Advance
Interest thereon) are made, they shall be made, first, from the aggregate
principal portions of P&I Advances and principal collections and recoveries
on the Mortgage Pool for such Collection Period contemplated by clauses (i)
through (v) of the definition of "Unadjusted Principal Distribution
Amount", net of the aggregate deduction amounts for Special Servicing Fees,
Liquidation Fees and/or Advance Interest with respect to Pooled Mortgage
Loans or REO Properties that were paid hereunder from a source other than
related Default Charges during the related Collection Period, as described
by clause (II)(A) of the definition of "Principal Distribution Amount", and
then from other amounts advanced or collected on the Mortgage Pool for such
Collection Period; provided that, except in extraordinary circumstances,
such Master Servicer, such Special Servicer or the Trustee, as applicable,
shall provide Xxxxx'x and S&P with at least 15 days notice before any
reimbursement shall be made of a Nonrecoverable Advance (or payment of
Advance Interest thereon from a source other than Default Charges on the
related Mortgage Loan) from such other amounts advanced or collected on the
Mortgage Pool for such Collection Period, 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 the
aggregate principal portions of P&I Advances and principal collections and
recoveries on the Mortgage Pool for such Collection Period contemplated by
clauses (i) through (v) of the definition of "Unadjusted Principal
Distribution Amount", net of the aggregate deduction amounts for such
Special Servicing Fees, Liquidation Fees and/or Advance Interest described
by clause (II)(A) of the definition of "Principal Distribution Amount",
such Master Servicer, such Special Servicer and/or the Trustee, as
applicable, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever), if it elects at
its sole option, to abstain from reimbursing itself or obtaining
reimbursement (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 the subject of the exercise of such option 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 a Master Servicer (or
the Trustee, as applicable) makes such an election at its sole option to
defer reimbursement with respect to all or a portion of a Nonrecoverable
Advance (and Advance Interest thereon), then such Nonrecoverable Advance
(and Advance Interest thereon) or portion thereof shall continue to be
fully reimbursable in any subsequent Collection Period. In connection with
a potential election by a Master Servicer (or the Trustee, as applicable)
to abstain from the reimbursement of a particular Nonrecoverable Advance or
portion thereof during the Collection Period for any Distribution Date,
each Master Servicer (or the Trustee, as applicable) shall further be
authorized to wait for principal collections to be received before making
its determination of whether to abstain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof.
Any collections (as applied under Section 1.03) received on the
Pooled Mortgage Loans during a Collection Period that, in each case,
represents a recovery of an amount determined in a prior Collection Period
to have been a Nonrecoverable Advance shall be added to and constitute a
part of the Principal Distribution Amount for the related Distribution Date
(pursuant to clause (I)(C) of the definition of "Principal Distribution
Amount") to the extent of all Nonrecoverable Advances on such respective
Mortgage Loan that were reimbursed from collections of principal on the
Mortgage Pool in all prior Collection Periods pursuant to the preceding
paragraph.
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None of the Master Servicer or the Trustee shall have any
liability whatsoever for making an election, or refraining from making an
election, that is authorized under this subsection (II)(iv). The foregoing
shall not, however, be construed to limit any liability that may otherwise
be imposed on such Person for any failure by such Person to comply with the
conditions to making such an election under this subsection (II)(iv) or to
comply with the terms of this subsection (II)(iv) and the other provisions
of this Agreement that apply once such an election, if any, has been made.
Any election by a Master Servicer (or the Trustee, as applicable)
to abstain from reimbursing itself for any Nonrecoverable Advance (and
Advance Interest thereon) or portion thereof with respect to any Collection
Period shall not be construed to impose on such Master Servicer (or the
Trustee, as applicable) any obligation to make such an election (or any
entitlement in favor of any Certificateholder or any other Person to such
an election) with respect to any subsequent Collection Period or to
constitute a waiver or limitation on the right of such Master Servicer (or
the Trustee, as applicable) to otherwise be reimbursed for such
Nonrecoverable Advance (and Advance Interest thereon). Any such election by
one of the Master Servicers or the Trustee shall not be construed to impose
any duty on any other such party to make such an election (or any
entitlement in favor of any Certificateholder or any other Person to such
an election). Any such election by any such party to abstain from
reimbursing itself or obtaining reimbursement 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 such
Nonrecoverable Advance for the period prior to the actual reimbursement of
such Nonrecoverable Advance. None of the Master Servicers, the Trustee or
the other parties to this Agreement shall have any liability to one another
or to any of the Certificateholders or any of the Non-Pooled Noteholders
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.
The Certificate Administrator (and, with respect to Advances made
by a Master Servicer and the Trustee) shall be entitled to rely
conclusively upon any direction or notice received from either Master
Servicer in connection with any determination made by such Master Servicer
pursuant to the foregoing provisions of this Section 3.05(a)(II)(iv) and
shall not be obligated to independently verify, monitor or oversee any such
determination.
(v) Deferral is Not Subordination. No determination by a Master
Servicer (or the Trustee, as applicable) to exercise its sole option to
defer the reimbursement of Advances and/or Advance Interest under
subsection (iv) shall be construed as an agreement by such Master Servicer
(or the Trustee, as applicable) to subordinate (in respect of realizing
losses), to any Class of Certificates, such party's right to such
reimbursement during such period of deferral.
(b) The Certificate Administrator shall, from time to time, make
withdrawals from the Distribution Account for each of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when required
by Section 3.04(c);
(iii) to pay itself, the Tax Administrator, either Master
Servicer, either Primary Servicer, any Special Servicer, the Depositor, the
Trustee or any of their respective directors, officers, members, managers,
employees and agents, as the case may be, any amounts payable to any such
Person pursuant to Section 6.03, Section 7.01(b), Section 8.05 or Section
8.13, as applicable, if and to the extent such amounts are not payable out
of a Collection Account pursuant to Section 3.05;
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(iv) to pay any and all federal, state and local taxes imposed on
any REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(v) to pay for the cost of the Opinions of Counsel as
contemplated by Section 12.01(a) or Section 12.01(c) in connection with any
amendment to this Agreement requested by the Trustee which amendment is in
furtherance of the rights and interests of Certificateholders;
(vi) to pay itself Net Investment Earnings earned on funds in the
Distribution Account for each Collection Period;
(vii) to pay for the cost of recording this Agreement pursuant to
Section 12.02(a);
(viii) to pay to any party hereto any amounts deposited or
remitted by such Person for deposit into the Distribution Account in error;
and
(ix) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2007), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Certificate Administrator shall withdraw from the Interest Reserve Account and
deposit in the Distribution Account all Interest Reserve Amounts in respect of
the Interest Reserve Loans then on deposit in the Interest Reserve Account. In
addition, the Certificate Administrator shall, from time to time, make
withdrawals from the Interest Reserve Account to pay itself interest or other
income earned on deposits in the Interest Reserve Account, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the Interest Reserve Account for each Collection Period).
(d) On the Business Day prior to each Distribution Date, the
Certificate Administrator shall withdraw from the Excess Liquidation Proceeds
Account and deposit in the Distribution Account, for distribution on such
Distribution Date, an amount equal to the lesser of (i) the entire amount of
Excess Liquidation Proceeds, if any, then on deposit in the Excess Liquidation
Proceeds Account and (ii) the excess, if any, of the aggregate amount
distributable on such Distribution Date pursuant to Section 4.01(a), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Certificate Administrator shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date, any and all Excess Liquidation Proceeds
then on deposit in the Excess Liquidation Proceeds Account. In addition, the
Certificate Administrator shall, from time to time, make withdrawals from the
Excess Liquidation Proceeds Account to pay itself interest or other income
earned on deposits in the Excess Liquidation Proceeds Account, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the Excess Liquidation Proceeds Account for each Collection
Period).
(e) The Certificate Administrator, the Trustee, the Depositor, each
Master Servicer, each Primary Servicer and the Special Servicer, as applicable,
shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Collection Accounts and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with such interest) and expenses are to be reimbursed or paid from such
particular funds on deposit in such Collection Account or the Distribution
Account pursuant to the express terms of this Agreement.
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(f) The applicable Master Servicer may, from time to time, make
withdrawals from the Companion Note Custodial Account for any of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals):
(i) to remit to the applicable Serviced Non-Pooled Pari Passu
Companion Noteholder the amounts to which the applicable Serviced
Non-Pooled Pari Passu Companion Noteholder is entitled in accordance with
the last paragraph of this Section 3.05(f), as and when required by such
paragraph;
(ii) to pay to itself earned and unpaid Master Servicing Fees in
respect of the related Serviced Non-Pooled Pari Passu Companion Loan or any
successor REO Mortgage Loan with respect thereto;
(iii) to pay to the applicable Special Servicer earned and unpaid
Special Servicing Fees in respect of the related Serviced Non-Pooled Pari
Passu Companion Loan or any successor REO Mortgage Loan with respect
thereto;
(iv) to pay the applicable Special Servicer (or, if applicable,
any predecessor thereto) earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled with respect to the related Serviced
Non-Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan
with respect thereto pursuant to, and from the sources contemplated by, the
second and third paragraphs of Section 3.11(c);
(v) to pay the applicable Special Servicer (or, if applicable,
any predecessor thereto) any earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled with respect to the related Serviced
Non-Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan
with respect thereto, but which is payable out of amounts collected on or
with respect to the related Serviced Non-Pooled Pari Passu Companion Loan
or any successor REO Mortgage Loan with respect thereto, pursuant to the
second and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the applicable Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds) with respect to the related
Serviced Mortgage Loan Group or any related REO Property (but only to the
extent that either amounts are on deposit in the Collection Account and
such Companion Note Custodial Account collectively that represent
collections of amounts that were the subject of such Servicing Advances or
such Servicing Advances have been determined to constitute Nonrecoverable
Advances);
(vii) to pay itself, the applicable Special Servicer or the
Trustee, as applicable, any Advance Interest then due and owing to such
Person with respect to any Servicing Advance made by such Person (out of
its own funds) with respect to the related Serviced Mortgage Loan Group or
any successor REO Mortgage Loan with respect thereto (but only to the
extent that the related Advance has been or is being reimbursed and the
related Default Charges available therefor are not sufficient to make such
payment of Advance Interest);
(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in such
Companion Note Custodial Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with respect
to the related Serviced Mortgage Loan Group or any related REO Property
(but only to the extent that amounts specifically allocable to such purpose
have not been deposited in the applicable Collection Account);
(x) to pay, in accordance with Section 3.11(i), certain servicing
expenses with respect to the related Serviced Mortgage Loan Group or any
related REO Property, which expenses would, if advanced, constitute
Nonrecoverable Servicing Advances (but only to the extent that amounts
specifically allocable to such purpose have not been deposited in the
applicable Collection Account);
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(xi) to pay any costs and expenses incurred by the Trust pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance) with
respect to the related Serviced Mortgage Loan Group or any related REO
Property (but only to the extent that amounts specifically allocable to
such purpose have not been deposited in the applicable Collection Account);
(xii) to pay itself, the applicable Special Servicer, the
Depositor, the Trustee, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable, in connection with the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(xiii) to pay to itself, the applicable Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the related Serviced
Non-Pooled Pari Passu Companion Loan Noteholder under any provision of this
Agreement or the related Mortgage Loan Group Intercreditor Agreement to
which reference is not made in any other clause of this Section 3.05(f), it
being acknowledged that this clause (xiii) shall not be construed to modify
any limitation otherwise set forth in this Agreement on the time at which
any Person is entitled to payment or reimbursement of any amount or the
funds from which any such payment or reimbursement is permitted to be made;
(xiv) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Companion Note Custodial Account in
error; and
(xv) to clear and terminate such Companion Note Custodial Account
at the termination of this Agreement pursuant to Section 9.01 or at such
time as the related Serviced Mortgage Loan Group or any related REO
Property is no longer serviced hereunder;
provided, however, that in connection with any expense, cost, reimbursement or
other amount otherwise permitted to be withdrawn from a Companion Note Custodial
Account pursuant to clause (vi) (relating to Servicing Advances), clause (vii)
(relating to Advance Interest on Servicing Advances), clause (ix) (relating to
Liquidation Expenses), clause (x) (relating to Nonrecoverable Servicing
Advances), clause (xi) (relating to certain environmental expenses) or clause
(xii) (relating to certain indemnification and similar expenses), such payment
shall be made, first, from any amounts in the related Subordinate Note Custodial
Account (if any) and, then, from other collections with respect to the related
Serviced Mortgage Loan Group on deposit in the relevant Collection Account and
all related Companion Note Custodial Account(s) (withdrawals from those accounts
to be made pro rata according to the related Mortgage Loan Group Intercreditor
Agreement and based on the respective outstanding principal balances of the
related Pooled Mortgage Loan and related Serviced Non-Pooled Pari Passu
Companion Loan).
Notwithstanding any contrary provision above, any reimbursements of
Servicing Advances out of such Companion Note Custodial Account shall be made
(to the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Trustee; second, to the Special Servicer; and third, to
the applicable Master Servicer.
The applicable Master Servicer shall pay to the applicable Special
Servicer from the related Companion Note Custodial Account amounts permitted to
be paid to the applicable Special Servicer therefrom in respect of Special
Servicing Fees, Workout Fees or otherwise, such payment (other than a payment of
Special Servicing Fees and other than a payment of Workout Fees arising from
collections other than the initial collection on a Corrected Mortgage Loan) to
be based upon a written statement of the applicable Special Servicer describing
the item and amount to which the Special Servicer is entitled. The applicable
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein.
The Trustee, the Depositor, the applicable Master Servicer and the
Special Servicer shall in all cases have a right prior to the related Serviced
Non-Pooled Pari Passu Companion Noteholder to any particular funds on deposit in
a
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Companion Note Custodial Account from time to time for the reimbursement or
payment of compensation, Servicing Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder, but only if and to
the extent such compensation, Servicing Advances (with interest) and expenses
are to be reimbursed or paid from such funds on deposit in such Companion Note
Custodial Account pursuant to the express terms of this Agreement and/or the
related Mortgage Loan Group Intercreditor Agreement.
The applicable Master Servicer shall withdraw from the Companion Note
Custodial Account and pay to the related Serviced Non-Pooled Pari Passu
Companion Loan Noteholder (in accordance with such Person's written
instructions) all amounts received on or with respect to the related Serviced
Non-Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan with
respect thereto that are deposited in such Companion Note Custodial Account
(exclusive of any portion of those amounts which the applicable Master Servicer
has actual knowledge are then payable or reimbursable to any Person pursuant to
any of clauses (ii) through (xiii) of the first paragraph of this Section
3.05(f)) on the Business Day following the applicable Master Servicer's receipt
of such amounts.
(g) The applicable Master Servicer may, from time to time, make
withdrawals from each Subordinate Note Custodial Account for any of the
following purposes (the order set forth below not constituting an order of
priority for such withdrawals):
(i) to remit to the applicable Serviced Non-Pooled Subordinate
Noteholder the amounts to which the applicable Serviced Non-Pooled
Subordinate Noteholder is entitled in accordance with the last paragraph of
this Section 3.05(g), as and when required by such paragraph;
(ii) to pay to itself earned and unpaid Master Servicing Fees in
respect of the related Serviced Non-Pooled Subordinate Loan or any
successor REO Mortgage Loan with respect thereto;
(iii) to pay to the applicable Special Servicer earned and unpaid
Special Servicing Fees in respect of the related Serviced Non-Pooled
Subordinate Loan or any successor REO Mortgage Loan with respect thereto;
(iv) to pay the applicable Special Servicer (or, if applicable,
any predecessor thereto) earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled with respect to the related Serviced
Non-Pooled Subordinate Loan or any successor REO Mortgage Loan with respect
thereto pursuant to, and from the sources contemplated by, the second and
third paragraphs of Section 3.11(c);
(v) to pay the applicable Special Servicer (or, if applicable,
any predecessor thereto) any earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled with respect to the related Serviced
Non-Pooled Subordinate Loan or any successor REO Mortgage Loan with respect
thereto, but which is payable out of amounts collected on or with respect
to the related Serviced Non-Pooled Subordinate Loan or any successor REO
Mortgage Loan with respect thereto, pursuant to the second and third
paragraphs of Section 3.11(c);
(vi) to reimburse itself, the applicable Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds) with respect to the related
Serviced Mortgage Loan Group or any related REO Property (but only to the
extent that amounts specifically allocable to such purpose have not been
deposited in the applicable Collection Account);
(vii) to pay itself, the applicable Special Servicer or the
Trustee, as applicable, any Advance Interest then due and owing to such
Person with respect to any Servicing Advance made by such Person (out of
its own funds) with respect to the related Serviced Mortgage Loan Group or
any successor REO Mortgage Loan with respect thereto;
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(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the applicable Special Servicer any items of
Additional Special Servicing Compensation with respect to the related
Serviced Mortgage Loan Group, in each case on deposit in such Subordinate
Note Custodial Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with respect
to the related Serviced Mortgage Loan Group or any related REO Property
(but only to the extent that amounts specifically allocable to such purpose
have not been deposited in the applicable Collection Account);
(x) to pay, in accordance with Section 3.11(i), certain servicing
expenses with respect to the related Serviced Mortgage Loan Group or any
related REO Property, which expenses would, if advanced, constitute
Nonrecoverable Servicing Advances (but only to the extent that amounts
specifically allocable to such purpose have not been deposited in the
applicable Collection Account);
(xi) to pay any costs and expenses incurred by the Trust pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance) with
respect to the related Serviced Mortgage Loan Group or any related REO
Property (but only to the extent that amounts specifically allocable to
such purpose have not been deposited in the applicable Collection Account);
(xii) to pay itself, the applicable Special Servicer, the
Depositor, the Trustee, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable, in connection with the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(xiii) to pay to itself, the applicable Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the related Serviced
Non-Pooled Subordinate Noteholder under any provision of this Agreement or
the related Mortgage Loan Group Intercreditor Agreement to which reference
is not made in any other clause of this Section 3.05(g), it being
acknowledged that this clause (xiii) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at which any
Person is entitled to payment or reimbursement of any amount or the funds
from which any such payment or reimbursement is permitted to be made;
(xiv) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Subordinate Note Custodial Account in
error; and
(xv) to clear and terminate such Subordinate Note Custodial
Account at the termination of this Agreement pursuant to Section 9.01 or at
such time as the related Serviced Mortgage Loan Group or any related REO
Property is no longer serviced hereunder.
provided, however, that in connection with any expense, cost, reimbursement or
other amount otherwise permitted to be withdrawn from a Subordinate Note
Custodial Account pursuant to clause (vi) (relating to Servicing Advances),
clause (vii) (relating to Advance Interest on Servicing Advances), clause (ix)
(relating to Liquidation Expenses), clause (x) (relating to Nonrecoverable
Servicing Advances), clause (xi) (relating to certain environmental expenses) or
clause (xii) (relating to certain indemnification and similar expenses), if
amounts on deposit in such Subordinate Note Custodial Account at any particular
time are insufficient to satisfy such payment or reimbursement, such payment or
reimbursement shall be made from collections with respect to the related
Serviced Mortgage Loan Group on deposit in the relevant Collection Account and
the related Companion Note Custodial Account (if any) (withdrawals from those
accounts to be made pro rata according to the related Mortgage Loan Group
Intercreditor Agreement and based on the respective outstanding principal
balances of the related Pooled Mortgage Loan and the related Non-Pooled Mortgage
Loan), but, to the extent that the amount is so paid from the relevant
Collection Account and/or Companion Note Custodial Account and
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funds that would otherwise have been available in the Subordinate Note Custodial
Account and used to pay such amount are subsequently collected or recovered,
then such funds shall be deposited into such Collection Account and/or Companion
Note Custodial Account.
Notwithstanding any contrary provision above, any reimbursements of
Servicing Advances out of such Subordinate Note Custodial Account shall be made
(to the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Trustee; second, to the applicable Special Servicer;
and third, to the applicable Master Servicer.
The applicable Master Servicer shall pay to the applicable Special
Servicer from the related Subordinate Note Custodial Account amounts permitted
to be paid to the applicable Special Servicer therefrom in respect of Special
Servicing Fees, Workout Fees or otherwise, such payment (other than a payment of
Special Servicing Fees and other than a payment of Workout Fees arising from
collections other than the initial collection on a Corrected Mortgage Loan) to
be based upon a written statement of the applicable Special Servicer describing
the item and amount to which the applicable Special Servicer is entitled. The
applicable Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein.
The Trustee, the Depositor, the applicable Master Servicer and the
applicable Special Servicer shall in all cases have a right prior to the related
Serviced Non-Pooled Subordinate Noteholder to any particular funds on deposit in
a Subordinate Note Custodial Account from time to time for the reimbursement or
payment of compensation, Servicing Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder, but only if and to
the extent such compensation, Servicing Advances (with interest) and expenses
are to be reimbursed or paid from such funds on deposit in such Subordinate Note
Custodial Account pursuant to the express terms of this Agreement and/or the
related Mortgage Loan Group Intercreditor Agreement.
The applicable Master Servicer shall withdraw from the applicable
Subordinate Note Custodial Account and pay to the related Serviced Non-Pooled
Subordinate Noteholder (in accordance with such Person's written instructions)
all amounts received on or with respect to the related Serviced Non-Pooled
Subordinate Loan or any successor REO Mortgage Loan with respect thereto that
are deposited in such Subordinate Note Custodial Account (exclusive of any
portion of those amounts which the applicable Master Servicer has actual
knowledge are then payable or reimbursable to any Person pursuant to any of
clauses (ii) through (xiii) of the first paragraph of this Section 3.05(g)) on
the Business Day following the applicable Master Servicer's receipt of such
amounts.
SECTION 3.06. Investment of Funds in the Accounts.
(a) Each applicable Master Servicer may direct (pursuant to a standing
order or otherwise) any depositary institution (including the Certificate
Administrator) that holds its Collection Account or any Companion Note Custodial
Account, Subordinate Note Custodial Account, Servicing Account or Reserve
Account maintained by it, the applicable Special Servicer may direct (pursuant
to a standing order or otherwise) any depositary institution (including the
Certificate Administrator) that holds the REO Account, and the Certificate
Administrator may direct (pursuant to a standing order or otherwise) any
depositary institution that holds the Distribution Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account to invest, or if any of the
Master Servicers, the Special Servicers or the Certificate Administrator, as
appropriate, is such depositary institution, such Master Servicer, such Special
Servicer or the Certificate Administrator, as the case may be, may invest
itself, the funds held therein in (but only in) one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
Investment Account pursuant to this Agreement or the related Mortgage Loan
Documents, as applicable, or with respect to Permitted Investments of funds held
in the Distribution Account, no later than 11:00 a.m., New York City time, on
the next succeeding Distribution Date; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan Documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the applicable Master Servicer, the applicable Special Servicer or the
Certificate Administrator, as appropriate, gives timely investment instructions
with
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respect thereto pursuant to or as contemplated by this Section 3.06. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). Each applicable Master Servicer (with respect
to Permitted Investments of amounts in its Collection Account or any Companion
Note Custodial Account, Subordinate Note Custodial Account, Servicing Account or
Reserve Account maintained by it), the applicable Special Servicer (with respect
to Permitted Investments of amounts in the REO Account), and the Certificate
Administrator (with respect to Permitted Investments of amounts in the
Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account) acting on behalf of the Trustee, shall (and Trustee hereby
designates the applicable Master Servicer, the Special Servicer or the
Certificate Administrator, as the case may be, as the Person that shall) (i) be
the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by a Master Servicer, a Special Servicer
or the Certificate Administrator shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the party hereunder that maintains such Investment Account (whether it is a
Master Servicer, a Special Servicer or the Certificate Administrator), shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
at least equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by such Master Servicer, such Special Servicer or
the Certificate Administrator, as the case may be, that such
Permitted Investment would not constitute a Permitted Investment
in respect of funds thereafter on deposit in such Investment
Account.
(b) Whether or not a Master Servicer directs the investment of funds
in any Investment Account (other than a Servicing Account or Reserve Account)
maintained by it, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of such Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05. Whether or not a Master Servicer directs the
investment of funds in any Servicing Account or Reserve Account maintained by
it, interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for such Investment Account for
each Collection Period, and subject to the requirements of applicable law or the
terms of the related Serviced Mortgage Loan(s) regarding the payment of such
interest and investment income to the related Borrower, shall be for the sole
and exclusive benefit of such Master Servicer and shall be subject to withdrawal
from time to time in accordance with Section 3.03. Whether or not a Special
Servicer directs the investment of funds in the REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of such Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). Whether
or not the Certificate Administrator directs the investment of funds in the
Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Certificate Administrator and shall be subject to its
withdrawal in accordance with Section 3.05. If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
party hereunder that maintains such Investment Account (whether it is a Master
Servicer, a Special Servicer or the Certificate Administrator), shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, in respect of such Investment Account
for such Collection Period (except, in the case of any such loss with respect to
a Servicing Account or Reserve Account, to the extent the loss amounts were
invested for the benefit of a Borrower under the terms of a Serviced Mortgage
Loan or applicable law).
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(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment of funds on deposit in any Investment
Account, and if the party hereunder that maintains such Investment Account
(whether it is a Master Servicer, a Special Servicer or the Certificate
Administrator) is in default of its obligations under or contemplated by Section
3.06(b), the Trustee may (and, subject to Section 8.02, upon the request of (i)
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class of Interest Only Certificates or Principal Balance
Certificates, (ii) the Controlling Class Representative or (iii) alternatively,
but only if the Permitted Investment involves funds on deposit in a Companion
Note Custodial Account or a Subordinate Note Custodial Account, the related
Serviced Non-Pooled Mortgage Loan Noteholder (it being understood that, for
purposes of this clause (iii), Section 8.02 shall be construed as if references
therein to one or more "Certificateholders" were instead references to such
Serviced Non-Pooled Mortgage Loan Noteholder), the Trustee shall) take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate legal proceedings. Any costs
incurred by the Trustee in taking any such action shall be reimbursed to it by
the party hereunder that maintains such Investment Account (whether it is a
Master Servicer, a Special Servicer or the Certificate Administrator). This
provision is in no way intended to limit any actions that a Master Servicer, a
Special Servicer or the Certificate Administrator may take in this regard at its
own expense.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amounts and
the monthly amounts payable to the respective Serviced Non-Pooled Mortgage Loan
Noteholders, the amounts so invested shall be deemed to remain on deposit in
such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) In the case of each Performing Serviced Mortgage Loan, the
applicable Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause the related Borrower to maintain (including
identifying the extent to which a Borrower is maintaining insurance coverage
and, if such Borrower does not so maintain, such Master Servicer will itself
cause to be maintained with Qualified Insurers having the Required Claims-Paying
Ratings) for the related Mortgaged Property (x) a fire and casualty extended
coverage insurance policy, 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, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (y)
all other insurance coverage (including but not limited to coverage for damage
resulting from acts of terrorism) as is required or that the lender is entitled
to reasonably require, subject to applicable law, under the related Mortgage
Loan Documents; provided that all of the following conditions and/or limitations
shall apply:
(A) the applicable Master Servicer shall not be required to
maintain any earthquake or environmental insurance policy on any Mortgaged
Property securing a Performing Serviced Mortgage Loan unless such insurance
policy was in effect at the time of the origination of such Mortgage Loan
pursuant to the terms of the related Mortgage Loan Documents and is
available at commercially reasonable rates (and if the applicable Master
Servicer does not cause the Borrower to maintain or does not itself
maintain such earthquake or environmental insurance policy on any Mortgaged
Property, the applicable Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake or environmental
insurance on any Mortgaged Property securing a Specially Serviced Mortgage
Loan or on an Administered REO Property so long as such insurance is
available at commercially reasonable rates);
(B) if and to the extent that any Performing Serviced Mortgage
Loan grants the lender thereunder any discretion (by way of consent,
approval or otherwise) as to the insurance provider from whom the related
Borrower is to obtain the requisite insurance coverage, the applicable
Master Servicer shall (to the extent consistent with the Servicing
Standard) require the related Borrower to obtain the requisite insurance
coverage from Qualified Insurers that, in each case, have the Required
Claims-Paying Ratings at the time such insurance coverage is obtained;
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(C) the applicable Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard
to cause the Borrower under any Performing Serviced Mortgage Loan to
maintain the insurance required to be maintained or that the lender is
entitled to reasonably require, subject to applicable law, under the
related Mortgage Loan Documents;
(D) in no event shall the applicable Master Servicer be required
to cause the Borrower under any Performing Serviced Mortgage Loan to
maintain, or itself obtain, insurance coverage that the applicable Master
Servicer has determined is either (i) not available at any rate or (ii) not
available at commercially reasonable rates and the related 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 the related
Mortgaged Property is located (in each case, as determined by the
applicable Master Servicer, which shall be entitled to rely, at its own
expense, on insurance consultants in making such determination) (and
provided that any such determinations by the applicable Master Servicer
must be made not less frequently (but need not be made more frequently)
than annually but in any event shall be made at the approximate date on
which the applicable Master Servicer receives notice of the renewal,
replacement or cancellation of coverage);
(E) the reasonable efforts of the applicable Master Servicer to
cause the Borrower under any Performing Serviced Mortgage Loan to maintain
insurance shall be conducted in a manner that takes into account the
insurance that would then be available to the applicable Master Servicer on
a force-placed basis; and
(F) to the extent the applicable Master Servicer itself is
required to maintain insurance that the Borrower under any Performing
Serviced Mortgage Loan does not maintain, the applicable Master Servicer
shall not be required to maintain insurance other than what is available to
such Master Servicer on a force-placed basis (and this will not be
construed to modify the other limits set forth in clause (D) above).
Notwithstanding the limitation set forth in clause (D) above, the
applicable Master Servicer shall, prior to availing itself of any limitation
described in that clause with respect to any Performing Serviced Mortgage Loan
that has a Stated Principal Balance in excess of $2,500,000, obtain the approval
or disapproval of the applicable Special Servicer (and, in connection therewith,
the applicable Special Servicer shall be required to comply with any applicable
provisions of Section 3.24, 3.27 and/or 3.28, if and as applicable). The
applicable Master Servicer shall be entitled to rely on the determination of the
Special Servicer made in connection with such approval or disapproval. The
applicable 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 Business Days (or in the case of the Serviced
Mortgage Loan Groups, such longer period of time, if any, that is provided in or
pursuant to Section 3.24, 3.27 and/or 3.28, if and as applicable) of the
applicable Special Servicer's receipt from the applicable Master Servicer of
such Master Servicer's determination and analysis and all information reasonably
requested thereby and reasonably available to the applicable Master Servicer in
order to make an informed decision, such approval shall be deemed to have been
granted.
The applicable Master Servicer shall notify the applicable Special
Servicer, the Trustee, the Controlling Class Representative and (if a Serviced
Mortgage Loan Group is involved) the related Serviced Non-Pooled Mortgage Loan
Noteholder, if the applicable Master Servicer determines that the Borrower under
any Performing Serviced Mortgage Loan has failed to maintain insurance required
under (or that such Master Servicer has required pursuant to a provision that
entitles the lender to reasonably require insurance under) the related Mortgage
Loan Documents and such failure materially and adversely affects such Mortgage
Loan and/or the interest of the Trust in the related Mortgaged Property or if
the Borrower under any Performing Serviced Mortgage Loan has notified the
applicable Master Servicer in writing that the Borrower does not intend to
maintain such insurance and the applicable Master Servicer has determined that
such failure materially and adversely affects such Mortgage Loan and/or the
interest of the Trust in the related Mortgaged Property.
Subject to Sections 3.17(b), 3.24, 3.27 and/or 3.28, as applicable,
with respect to each Specially Serviced Mortgage Loan and Administered REO
Property, the applicable Special Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to maintain (and, in the case of
Specially Serviced Mortgage Loans, the applicable Special
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Servicer shall (x) direct the applicable Master Servicer to make a Servicing
Advance for the costs associated with coverage that such Special Servicer
determines to maintain, in which case the applicable Master Servicer shall make
such Servicing Advance (subject to Section 3.19(b)), or (y) direct the
applicable Master Servicer to cause such coverage to be maintained under the
applicable Master Servicer's force-place insurance policy, in which case the
applicable Master Servicer shall so cause such coverage to be maintained
thereunder to the extent that the identified coverage is available under the
applicable Master Servicer's existing force-place policy) with Qualified
Insurers having the Required Claims-Paying Ratings (a) a fire and casualty
extended coverage insurance policy, 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 at such REO
Property or (ii) the outstanding principal balance of such Mortgage Loan or the
related REO Mortgage Loan, but, in any event, in an amount sufficient to avoid
the application of any co-insurance clause, (b) a comprehensive general
liability insurance policy with coverage comparable to that which would be
required under prudent lending requirements and in an amount not less than $1
million per occurrence and (c) to the extent consistent with the Servicing
Standard, a business interruption or rental loss insurance covering revenues or
rents for a period of at least twelve (12) months or, with respect to Mortgage
Loans with initial principal balances greater than $35 million, at least
eighteen (18) months, in each case if so required pursuant to the related
Mortgage Loan Documents; provided, however, that neither the applicable Master
Servicer nor the applicable Special Servicer shall be required in any event to
maintain or obtain the insurance coverage otherwise described by this paragraph
beyond what is available at commercially reasonable rates and consistent with
the Servicing Standard.
All such insurance policies maintained as described above shall
contain (if they insure against loss to property) a "standard" mortgagee clause,
with loss payable to the applicable Master Servicer on behalf of the Trustee, in
the case of insurance maintained in respect of a Serviced Mortgage Loan, or
shall name the Trustee as the insured, with loss payable to the applicable
Special Servicer on behalf of the Trustee, in the case of insurance maintained
in respect of an Administered REO Property. Any amounts collected by a Master
Servicer or a Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Borrower, in each case in
accordance with the Servicing Standard) shall be deposited in the Collection
Account of the applicable Master Servicer, a related Companion Note Custodial
Account and/or a related Subordinate Note Custodial Account, as appropriate in
accordance with Section 3.04, subject to withdrawal pursuant to Section 3.05, in
the case of amounts received in respect of a Serviced Mortgage Loan, or in the
REO Account of the applicable Special Servicer, subject to withdrawal pursuant
to Section 3.16(c), in the case of amounts received in respect of an
Administered REO Property. Any cost incurred by a Master Servicer or Special
Servicer in maintaining any such insurance shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of a Master
Servicer or Special Servicer on behalf of the Trust (and, if applicable, the
Serviced Non-Pooled Mortgage Loan Noteholders) to enforce any obligations of the
related Borrower under such Mortgage Loan. Costs to a Master Servicer or the
Special Servicer of maintaining insurance policies pursuant to this Section 3.07
shall (subject to Section 3.11(h) and Section 3.19(b)) be paid by, and
reimbursable to, such Master Servicer or Special Servicer, as the case may be,
as a Servicing Advance.
(b) If (i) a Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force-placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans or Administered REO Properties, as applicable, as to which it is
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, then, to the extent such policy (A) is obtained from a Qualified Insurer
having the Required Claims-Paying Ratings, and (B) provides protection
equivalent to the individual policies otherwise required herein and in the
Mortgage Loan Documents or (ii) a Master Servicer or Special Servicer has
long-term unsecured debt obligations that are rated not lower than "A2" by
Xxxxx'x and "A" by S&P and such Master Servicer or such Special Servicer, as the
case may be, self-insures for its obligation to maintain, and deposits into its
Collection Account (any such deposit to be deemed to constitute "Insurance
Proceeds") the amount of any loss to the Trust that would have been covered by,
the individual policies otherwise required, such Master Servicer or such Special
Servicer, as the case may be, shall conclusively be deemed to have satisfied its
obligation to cause hazard insurance to be maintained
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on the related Mortgaged Properties or REO Properties, as applicable. Such a
blanket or master force-placed policy may contain a deductible clause (not in
excess of a customary amount), in which case the applicable Master Servicer or
the applicable Special Servicer, as the case may be, whichever maintains such
policy, shall, if there shall not have been maintained on any Mortgaged Property
securing a Serviced Mortgage Loan or any Administered REO Property thereunder a
hazard insurance policy complying with the requirements of Section 3.07(a), and
there shall have been one or more losses that would have been covered by such an
individual policy, promptly deposit into the applicable Collection Account (or,
to the extent the loss affects a related Serviced Non-Pooled Mortgage Loan
Noteholder, in the related Companion Note Custodial Account or Subordinate Note
Custodial Account, as applicable) maintained by the applicable Master Servicer,
from its own funds without any right of reimbursement from the Trust, the amount
not otherwise payable under the blanket or master force-placed policy in
connection with such loss or losses because of such deductible clause to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Serviced Mortgage Loan (or, in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). The Master Servicers and the Special
Servicers shall each prepare and present, on behalf of itself, the Trustee and
Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan
Noteholders, claims under any such blanket or master force-placed policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) With respect to each Performing Serviced Mortgage Loan that is
subject to an Environmental Insurance Policy, if the applicable Master Servicer
(or the applicable Primary Servicer serving on its behalf) has actual knowledge
of any event (an "Insured Environmental Event") giving rise to a claim under an
Environmental Insurance Policy, such Master Servicer shall notify the applicable
Special Servicer to such effect and such Master Servicer shall take reasonable
actions as are in accordance with the Servicing Standard and the terms and
conditions of such Environmental Insurance Policy to make a claim thereunder and
achieve the payment of all amounts to which the Trust is entitled thereunder.
With respect to each Specially Serviced Mortgage Loan and Administered REO
Property that is subject to an Environmental Insurance Policy, if the applicable
Special Servicer has actual knowledge of any event giving rise to a claim under
an Environmental Insurance Policy, such Special 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 claim under an Environmental Insurance
Policy described above (whether by the applicable Master Servicer or the
applicable Special Servicer) shall be (subject to Section 3.11(h) and Section
3.19(b)) paid by, and reimbursable to, such Master Servicer or Special Servicer,
as the case may be, as a Servicing Advance.
(d) The Master Servicers and the Special Servicers shall each at all
times during the term of this Agreement (or, in the case of a Special Servicer,
at all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or Administered REO Properties for which it is the applicable
Special Servicer exist as part of the Trust Fund) keep in force with a Qualified
Insurer having the Required Claims-Paying Ratings, a fidelity bond in such form
and amount as are consistent with the Servicing Standard. A Master Servicer or
Special Servicer shall be deemed to have complied with the foregoing provision
if an Affiliate thereof has such fidelity bond coverage and, by the terms of
such fidelity bond, the coverage afforded thereunder extends to such Master
Servicer or such Special Servicer, as the case may be. Such fidelity bond shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of a Master
Servicer or Special Servicer are rated not lower than "Baa2" by Xxxxx'x and
"BBB" by S&P, such Master Servicer or Special Servicer may self-insure with
respect to the fidelity bond coverage required as described above, in which case
it shall not be required to maintain an insurance policy with respect to such
coverage.
The Master Servicers and the Special Servicers shall each at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or Administered REO Properties exist as part of the Trust
Fund) also keep in force with a Qualified Insurer having the Required
Claims-Paying Ratings, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as are consistent with the Servicing Standard.
A Master Servicer or Special
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Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to such Master Servicer or
such Special Servicer, as the case may be. Any such errors and omissions policy
shall provide that it may not be canceled without ten days' prior written notice
to the Trustee. So long as the long-term unsecured debt obligations of a Master
Servicer or a Special Servicer are rated not lower than "Baa2" by Xxxxx'x and
"BBB" by S&P, such Master Servicer or Special Servicer may self-insure with
respect to the errors and omissions coverage required as described above, in
which case it shall not be required to maintain an insurance policy with respect
to such coverage.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If the provisions of any Serviced Mortgage Loan expressly permits
the assignment of the related Mortgaged Property to, and assumption of such
Mortgage Loan by, another Person upon the satisfaction of specified conditions,
prohibits such an assignment or assumption except upon the satisfaction of
specified conditions or fully prohibits such an assignment and assumption, and
the related Borrower requests approval for such an assignment and assumption or
enters into a transfer of the related Mortgaged Property in violation of the
related Mortgage Loan Documents, or if the provisions of any Mortgage Loan
expressly permits the further encumbrance of the related Mortgaged Property upon
the satisfaction of specified conditions, prohibits such a further encumbrance
except upon the satisfaction of specified conditions or fully prohibits such a
further encumbrance, and the related Borrower requests approval for such a
further encumbrance or enters into a further encumbrance in violation of the
related Mortgage Loan Documents, the applicable Master Servicer (with respect to
a Performing Mortgage Loan) or the applicable Special Servicer (with respect to
a Specially Serviced Mortgage Loan) shall obtain the relevant information and
review and make a determination to either (i) disapprove such request for
approval of an assignment and assumption or further encumbrance (in the case of
a Borrower request for approval thereof) and not waive any violation of the
relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best
economic interest of the Trust and, if applicable, any affected Serviced
Non-Pooled Mortgage Loan Noteholder(s) (as a collective whole), approve the
request or waive the effect of the due-on-sale or due-on-encumbrance clause;
provided, however, that all of the following conditions and/or restrictions
shall apply:
(A) the applicable Master Servicer shall not enter into such a
waiver or approval for any Performing Serviced Mortgage Loan that is a
Pooled Mortgage Loan, unless such Master Servicer has obtained the consent
of the applicable Special Servicer (it being understood and agreed that (1)
the applicable Master Servicer shall promptly provide the applicable
Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to
the related Serviced Mortgage Loan Group Controlling Party) with notice of
any Borrower request for such assignment or assumption, the applicable
Master Servicer's recommendations and analysis, and with all information
reasonably available to the applicable Master Servicer that the applicable
Special Servicer may reasonably request in order to withhold or grant any
such consent, (2) the applicable Special Servicer shall decide whether to
withhold or grant such consent in accordance with the Servicing Standard
(and subject to Section 3.24, 3.27 and/or 3.28, if and as applicable), (3)
except with respect to any Nationwide Pooled Mortgage Loan, PCF Pooled
Mortgage Loan or PCFII Pooled Mortgage Loan, if any such consent has not
been expressly denied within seven Business Days (or, in the case of the
0000 Xxxxxxxx Loan Group, such longer period of time, if any, that is
provided in Section 18(a) of the 0000 Xxxxxxxx Intercreditor Agreement, or,
in the case of the Tuscany Plaza Loan Group, such longer period of time, if
any, that is provided in Section 19(a) of the Tuscany Plaza Intercreditor
Agreement) of the applicable Special Servicer's receipt from the applicable
Master Servicer of such Master Servicer's recommendations and analysis and
all information reasonably requested thereby and reasonably available to
the applicable Master Servicer in order to make an informed decision, such
consent shall be deemed to have been granted, and (4) solely with respect
to any PCF Pooled Mortgage Loan, PCFII Pooled Mortgage Loan or any
Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have
been granted if such consent has not been expressly denied either (x)
within ten Business Days of the applicable Special Servicer's receipt of
the applicable Master Servicer's recommendations and analysis, if the
applicable Special Servicer has not requested additional information as
described above on or before the date that is four Business Days following
the applicable Special Servicer's initial receipt of the applicable Master
Servicer's recommendations and analysis, or (y) within six Business Days
following the applicable Special Servicer's receipt of the additional
information
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requested by the applicable Special Servicer as described above, if the
applicable Special Servicer has requested such additional information on or
before the date that is four Business Days following the applicable Special
Servicer's initial receipt of the applicable Master Servicer's
recommendations and analysis);
(B) (1) if approval of an assignment and assumption or waiver of
a due-on-sale provision is involved and the affected Serviced Mortgage Loan
is a Pooled Mortgage Loan that (together with all other Pooled Mortgage
Loans, if any, that are in the same Cross-Collateralized Group as such
Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan
or have Borrowers that are known to be affiliated with the Borrower under
such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans
then in the Trust or has a Cut-off Date Principal Balance in excess of
$20,000,000, then, subject to the related Mortgage Loan Documents and
applicable law, neither the applicable Master Servicer (with respect to a
Serviced Pooled Mortgage Loan other than a Specially Serviced Pooled
Mortgage Loan) nor the applicable Special Servicer (with respect to a
Specially Serviced Pooled Mortgage Loan) shall enter into such approval or
waiver unless and until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates and (2) if approval of an
assignment and assumption or waiver of a due-on-sale provision is involved
and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu
Companion Loan, then, subject to the related Mortgage Loan Documents and
applicable law, neither the applicable Master Servicer (if such Serviced
Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the
applicable Special Servicer (if such Serviced Mortgage Loan is a Specially
Serviced Pooled Mortgage Loan) shall enter into such approval or waiver
unless and until it has received written confirmation from each applicable
Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities that such action would not result in an Adverse Rating Event
with respect to any class of such Non-Pooled Pari Passu Companion Loan
Securities rated by such Rating Agency;
(C) (1) if approval of a further encumbrance or waiver of a
due-on-encumbrance provision is involved, then, subject to the related
Mortgage Loan Documents and applicable law, neither the applicable Master
Servicer (with respect to a Performing Serviced Mortgage Loan) nor the
applicable Special Servicer (with respect to a Specially Serviced Mortgage
Loan) shall enter into such approval or waiver unless and until it has
received written confirmation that such action would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates from
each Rating Agency, with respect to any Serviced Pooled Mortgage Loan that
(a) represents 2% or more of the then aggregate principal balance of all of
the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten
largest Pooled Mortgage Loans then in the Trust Fund by principal balance,
(c) has an aggregate loan-to-value ratio (including existing and proposed
additional debt) that is equal to or greater than 85% or (d) has an
aggregate debt service coverage ratio (including the debt service on the
existing and proposed additional debt) that is less than 1.2x and (2) if
approval of a further encumbrance or waiver of a due-on-encumbrance
provision is involved and the affected Serviced Mortgage Loan is a Serviced
Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage
Loan Documents and applicable law, neither the applicable Master Servicer
(if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage
Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan
is a Specially Serviced Pooled Mortgage Loan) shall enter into such
approval or waiver unless and until it has received written confirmation
from each applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities that such action would not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari Passu
Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a
due-on-sale provision is involved, then, subject to the related Mortgage
Loan Documents and applicable law, neither the applicable Master Servicer
(with respect to a Performing Serviced Mortgage Loan) nor the applicable
Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall
enter into such approval or waiver with respect to any Mortgaged Property
which secures a Cross-Collateralized Group unless (i) all of the Mortgaged
Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Borrower(s) or (ii) either (x) in the case
of a Master Servicer, it has obtained the consent of the applicable Special
Servicer (pursuant to the approval procedures described in clause (A)
above) or (y) in the case of a Special Servicer, it has obtained the
consent of
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the Controlling Class Representative and/or the related Serviced Mortgage
Loan Group Controlling Party, if and to the extent required under Sections
3.24, 3.27 and/or 3.28, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer (with respect to a Performing
Serviced Mortgage Loan) nor the applicable Special Servicer (with respect
to a Specially Serviced Mortgage Loan) shall enter into such approval or
waiver unless all associated costs and expenses (including the costs of any
confirmation(s) of the absence of an Adverse Rating Event) are covered
without any expense to the Trust or (in the case of a Serviced Mortgage
Loan Group) any expense to any related Serviced Non-Pooled Mortgage Loan
Noteholder(s) (it being understood and agreed that, except as expressly
provided herein, neither the applicable Master Servicer nor the applicable
Special Servicer shall be obligated to cover or assume any such costs or
expenses);
(F) neither the applicable Master Servicer (with respect to a
Performing Serviced Mortgage Loan) nor the applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall, in connection
with any such approval or waiver, consent or agree to any modification,
waiver or amendment of any term or provision of such Serviced Mortgage Loan
that would result in an Adverse REMIC Event with respect to any REMIC Pool
or any Adverse Grantor Trust Event with respect to any Grantor Trust Pool;
and
(G) the applicable Special Servicer shall not consent to a Master
Servicer's recommendation described in clause (A) above, or itself enter
into such an approval or waiver, unless the applicable Special Servicer has
complied with Sections 3.24, 3.27 and/or 3.28, as applicable.
Notwithstanding the foregoing, in no event will the applicable Master
Servicer's approval of an assignment and assumption or further encumbrance be
conditioned on the approval or absence of objection from the applicable Special
Servicer if (a) the transaction is permitted under the related Mortgage Loan
Documents and (b) the conditions to the transaction that are set forth in the
related Mortgage Loan Documents do not include the approval of the lender or the
exercise of lender discretion (other than confirming the satisfaction of the
other conditions to the transaction set forth in the related Mortgage Loan
Documents that do not include any other approval or exercise).
(b) In connection with any permitted assumption of any Serviced
Mortgage Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause
thereunder, the applicable Master Servicer (in the case of a Performing Serviced
Mortgage Loan) or the applicable Special Servicer (in the case of a Specially
Serviced Mortgage Loan) shall prepare all documents necessary and appropriate
for such purposes and shall coordinate with the related Borrower for the due
execution and delivery of such documents.
(c) The applicable Master Servicer shall have the right to consent to
any transfers of an interest in the Borrower under a Performing Serviced
Mortgage Loan, to the extent such transfer is allowed under the terms of the
related Mortgage Loan Documents (without the exercise of any lender approval or
discretion other than confirming the satisfaction of the other conditions to the
transfer set forth in the related Mortgage Loan Documents that do not include
any other approval or exercise of discretion), including any consent to transfer
to any subsidiary or affiliate of such Borrower or to a person acquiring less
than a majority interest in such Borrower; provided, however, that, subject to
the terms of the related Mortgage Loan Documents and applicable law, if (i) the
affected Serviced Mortgage Loan is a Pooled Mortgage Loan that, together with
all other Pooled Mortgage Loans, if any, that are in the same
Cross-Collateralized Group as such Pooled Mortgage Loan or have the same
Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be
affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated
Principal Balance that equals or exceeds 5% of the then aggregate Stated
Principal Balance of the Mortgage Pool or is one of the then current top ten
Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool or has
a Cut-off Date Principal Balance in excess of $20,000,000, and (ii) the transfer
is of an interest in the Borrower greater than 49%, then the applicable Master
Servicer shall not consent to such transfer unless and until it has received
written confirmation from each Rating Agency that such action would not result
in an Adverse Rating Event with respect to any Class of Rated Certificates (the
costs of which are to be payable by the related Borrower to the extent provided
for in the related Mortgage Loan Documents, which provisions shall not be waived
by the applicable Master Servicer, and, if not paid, such costs shall be paid by
and
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reimbursed to the applicable Master Servicer as an Additional Trust Fund
Expense); provided, further, however, that, subject to the terms of the related
Mortgage Loan Documents and applicable law, if (i) the matter involves a
Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari
Passu Companion Loans and (ii) the transfer is of an interest in the Borrower
greater than 49%, then the applicable Master Servicer shall not consent to such
transfer unless and until it has received written confirmation from each Rating
Agency for the Rated Certificates that such action would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and also a written confirmation from each applicable Rating
Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such
action would not result in an Adverse Rating Event with respect to any class of
such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency
(the costs of which are to be payable by the related Borrower to the extent
provided for in the related Mortgage Loan Documents, which provisions shall not
be waived by the applicable Master Servicer, and, if not paid, such costs shall
be paid by and reimbursed to the applicable Master Servicer as an Additional
Trust Fund Expense). The applicable Master Servicer shall be entitled to collect
and receive from Borrowers any customary fees in connection with such transfers
of interest as Additional Master Servicing Compensation.
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans.
(a) The applicable Special Servicer shall, subject to Sections
3.09(b), 3.09(c), 3.09(d), 3.24, 3.27 and 3.28, exercise reasonable efforts,
consistent with the Servicing Standard, to foreclose upon or otherwise
comparably convert the ownership of the real property and other collateral
securing any Serviced Mortgage Loan that comes into and continues in default and
as to which no satisfactory arrangements can be made for collection of
delinquent payments, including pursuant to Section 3.20; provided that neither
Master Servicer shall, with respect to any Serviced Mortgage Loan that is an ARD
Mortgage Loan after its Anticipated Repayment Date, take any enforcement action
with respect to the payment of Post-ARD Additional Interest (other than the
making of requests for its collection), and the applicable Special Servicer may
take such enforcement action only if (i) the taking of an enforcement action
with respect to the payment of other amounts due under such Mortgage Loan is, in
the reasonable judgment of the applicable Special Servicer, and without regard
to such Post-ARD Additional Interest, also necessary, appropriate and consistent
with the Servicing Standard or (ii) all other amounts due under such Mortgage
Loan have been paid, the payment of such Post-ARD Additional Interest has not
been forgiven in accordance with Section 3.20 and, in the reasonable judgment of
the applicable Special Servicer, 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 Advance
Interest. In connection with the foregoing, in the event of a default under any
Serviced Mortgage Loan or Cross-Collateralized Group that is secured by real
properties located in multiple states, and such states include California or
another state with a statute, rule or regulation comparable to California's "one
action rule", then the applicable Special Servicer shall consult Independent
counsel regarding the order and manner in which the applicable Special Servicer
should foreclose upon or comparably proceed against such properties. The
applicable Special Servicer may direct the applicable Master Servicer to
advance, as contemplated by Section 3.19(b), all costs and expenses (including
attorneys fees and litigation costs and expenses) to be incurred on behalf of
the Trust in any such proceedings or such consultation, subject to the
applicable Master Servicer being entitled to reimbursement for any such advance
as a Servicing Advance as provided in Section 3.05(a), and further subject to
the applicable Special Servicer's being entitled to pay out of the related
Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds any
Liquidation Expenses incurred in respect of any Serviced Mortgage Loan, which
Liquidation Expenses were outstanding at the time such proceeds are received.
Nothing contained in this Section 3.09 shall be construed so as to require the
applicable Special Servicer, on behalf of the Trust, to make a bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the applicable
Special Servicer taking into account the factors described in Section 3.18 and
the results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the applicable Master Servicer or the applicable
Special Servicer deems it necessary in accordance with the Servicing Standard
for purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Serviced Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, such Master Servicer or such Special Servicer (as the
case may be) is authorized to have an
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Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
Neither Master Servicer shall foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a defaulted Serviced Mortgage Loan. The Special Servicers
and the Master Servicers shall not foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a Non-Trust-Serviced Pooled Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section 3.09, no
Mortgaged Property shall be acquired by the applicable Special Servicer on
behalf of the Trust (and, in the case of a Serviced Mortgage Loan Group, the
related Serviced Non-Pooled Mortgage Loan Noteholder(s)) under such
circumstances, in such manner or pursuant to such terms as would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (unless the portion of such REO
Property that is not treated as "foreclosure property" and that is held by any
REMIC Pool at any given time constitutes not more than a de minimis amount of
the assets of such REMIC Pool within the meaning of Treasury Regulations Section
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust to the imposition of any federal income or prohibited
transaction taxes under the Code. Subject to the foregoing, however, a Mortgaged
Property may be acquired through a single member limited liability company. In
addition, except as permitted under Section 3.17(a), the applicable Special
Servicer shall not acquire any personal property on behalf of the Trust (and, in
the case of a Serviced Mortgage Loan Group, the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)) pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the applicable
Special Servicer; or
(ii) the applicable Special Servicer shall have obtained an
Opinion of Counsel (the cost of which shall be covered by, and reimbursable
as, a Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not result in an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to any Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
applicable Special Servicer shall not, on behalf of the Trust (and, in the case
of a Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), have a receiver of rents appointed with respect to a Mortgaged
Property, or obtain title to a Mortgaged Property by foreclosure, deed in lieu
of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders, could, in the reasonable judgment of such Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the applicable Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental
Assessment (and any additional environmental testing that the applicable
Special Servicer deems necessary and prudent) of such Mortgaged Property
conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments and performed during the 12-month period
preceding any such acquisition of title or other action, that such
Mortgaged Property is in compliance with applicable environmental laws and
regulations and there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and regulations; or
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the applicable Special Servicer has previously
determined in accordance with the Servicing Standard, on the same basis as
described in clause (c)(i) above, and taking into account the coverage
provided under the related Environmental Insurance Policy, that it would
maximize the recovery to the Certificateholders and, in the case of
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a Mortgaged Property securing a Serviced Mortgage Loan Group, to the
related Serviced Non-Pooled Mortgage Loan Noteholder(s) (as a collective
whole) on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders and, in the
case of a Mortgaged Property securing a Serviced Mortgage Loan Group, to
the related Serviced Non-Pooled Mortgage Loan Noteholder(s), to be
performed at the related Net Mortgage Rate (or (x) in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, at the related Net
Mortgage Rate immediately prior to the Anticipated Repayment Date, or (y)
in the case of a Serviced Mortgage Loan Group, at the weighted average of
the Net Mortgage Rates for the related Mortgage Loans)) to acquire title to
or possession of the Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by a Special Servicer contemplated by clause
(i) or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the applicable Master
Servicer and the Controlling Class Representative (and, in the case of a
Mortgaged Property securing a Serviced Mortgage Loan Group, to the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)), specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, as well as the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding paragraph, shall be paid out of the applicable Collection
Account (subject to, if it relates to one or more Mortgage Loans in a Serviced
Mortgage Loan Group, the proviso at the end of the first paragraph (that is, the
initial paragraph that includes the enumerated clauses (i) through (xxii)) of
subsection (I) of Section 3.05(a)).
(d) If neither of the conditions set forth in clauses (i) and (ii) of
the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Mortgage Loan (or, if
applicable, a Serviced Mortgage Loan Group), the applicable Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust and, if applicable, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s), release all or a portion of
such Mortgaged Property from the lien of the related Mortgage; provided that
both (i) if such Serviced Mortgage Loan has a then outstanding principal balance
greater than $1 million, then prior to the release of all or a portion of the
related Mortgaged Property from the lien of the related Mortgage, the applicable
Special Servicer shall have notified the Rating Agencies, the Controlling Class
Representative, the Trustee, the applicable Master Servicer and, if a Serviced
Mortgage Loan Group is involved, the related Serviced Mortgage Loan Group
Controlling Party if and to the extent required under the applicable Mortgage
Loan Group Intercreditor Agreement, in writing of its intention to so release
all or a portion of such Mortgaged Property and the basis for the determination
that such intention, in the applicable Special Servicer's good faith judgment,
was consistent with the Servicing Standard and (ii) if the 0000 Xxxxxxxx Loan
Group or the Tuscany Plaza Loan Group is involved, the 0000 Xxxxxxxx Controlling
Party or the Tuscany Plaza Controlling Party, as the case may be, shall have the
rights, if any, in respect thereof that are enumerated in the 0000 Xxxxxxxx
Intercreditor Agreement or the Tuscany Plaza Intercreditor Agreement, as the
case may be.
(e) The applicable Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative (and, in the
case of a Mortgaged Property securing a Serviced Mortgage Loan Group, the
related Non-Pooled Mortgage Loan Noteholder(s)) monthly in writing as to any
actions taken by the applicable Special Servicer with respect to any Mortgaged
Property as to which neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied, in each case until
the earliest to occur of satisfaction of either of such conditions, release of
the lien of the related Mortgage on such Mortgaged Property and the related
Serviced Mortgage Loan's (or, in the case of a Serviced Mortgage Loan Group,
each of the related Serviced Mortgage Loan's) becoming a Corrected Mortgage
Loan.
(f) The applicable Special Servicer shall have the right to determine,
in accordance with the Servicing Standard, with respect to any Specially
Serviced Mortgage Loan, the advisability of seeking to obtain a
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deficiency judgment if the state in which the related Mortgaged Property is
located and the terms of the subject Mortgage Loan permit such an action and
shall, in accordance with the Servicing Standard, seek such deficiency judgment
if it deems advisable. The applicable Master Servicer, at the direction of the
applicable Special Servicer, shall make a Servicing Advance for the costs
incurred in pursuing any such deficiency action, provided that such Master
Servicer shall not be obligated in connection therewith to advance any funds,
which if so advanced would constitute a Nonrecoverable Advance.
(g) Annually in each January, the applicable Master Servicer shall,
with the reasonable cooperation of the applicable Special Servicer, prepare and
file with the IRS on a timely basis the information returns with respect to the
reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Serviced Mortgage Loan
for which it is the applicable Master Servicer, or Mortgaged Property securing a
Serviced Mortgage Loan for which it is the applicable Master Servicer, required
by Sections 6050H (as applicable), 6050J and 6050P of the Code.
Contemporaneously therewith, the applicable Master Servicer shall deliver a copy
of such information returns to the applicable Special Servicer and the Trustee.
(h) As soon as the applicable Special Servicer (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, the
applicable Master Servicer) makes a Final Recovery Determination (such
determination to be made in consultation with the Controlling Class
Representative (or, in the case of a Serviced Mortgage Loan Group, the related
Serviced Mortgage Loan Group Controlling Party if and to the extent required
under the applicable Mortgage Loan Group Intercreditor Agreement) and the
related calculations to be subject to the approval of such Controlling Class
Representative (or, in the case of a Serviced Mortgage Loan Group, the related
Serviced Mortgage Loan Group Controlling Party) with respect to any Mortgage
Loan or REO Property, it shall promptly notify the Certificate Administrator,
the Trustee, the applicable Master Servicer (unless it is the one making the
determination) and the Controlling Class Representative (and, in the case of a
Serviced Mortgage Loan Group, the related Serviced Mortgage Loan Group
Controlling Party if and to the extent required under the applicable Mortgage
Loan Group Intercreditor Agreement). The applicable Special Servicer (or, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property,
the applicable Master Servicer) shall maintain accurate records, prepared by a
Servicing Officer, of each such Final Recovery Determination (if any) made by it
and the basis thereof. Each such Final Recovery Determination (if any) shall be
evidenced by an Officer's Certificate delivered to the Certificate
Administrator, the Trustee, the applicable Master Servicer (unless it is the one
making the determination), the Controlling Class Representative and, if any
Mortgage Loan in a Serviced Mortgage Loan Group is involved, the related
Serviced Mortgage Loan Group Controlling Party if and to the extent required
under the applicable Mortgage Loan Group Intercreditor Agreement, no later than
ten Business Days following such Final Recovery Determination. For purposes of
making a Final Recovery Determination with respect to a Non-Trust-Serviced
Pooled Mortgage Loan or any related REO Property, the applicable Master Servicer
shall be entitled to rely on any comparable determination made by the related
Non-Trust Special Servicer.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or the
receipt by the applicable Master Servicer of a notification that payment in full
shall be escrowed or made in a manner customary for such purposes, the
applicable Master Servicer shall promptly so notify the Trustee and request
delivery to it or its designee of the related Mortgage File and, in the case of
a Serviced Non-Pooled Mortgage Loan, the Master Servicer shall promptly so
notify the relevant Serviced Non-Pooled Mortgage Loan Noteholder, and request
delivery to it or its designee of the related Mortgage Note, as applicable (such
notice and request to be effected by delivering to the Trustee a Request for
Release in the form of Exhibit C-1 attached hereto, which Request for Release
shall be accompanied by the form of any release or discharge to be executed by
the Trustee and, in the case of the Serviced Non-Pooled Mortgage Loans, the
related Serviced Non-Pooled Mortgage Loan Noteholder, and 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 such Master
Servicer's Collection Account and/or, in the case of the Serviced Non-Pooled
Mortgage Loans, in the related Companion Note Custodial Account or the related
Subordinate Note Custodial Account, as applicable, pursuant to Section 3.04 have
been or will be so deposited). Upon receipt of such Request for Release, the
Trustee and, in the case of the a Serviced Non-Pooled
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Mortgage Loan, if applicable, the related Serviced Non-Pooled Mortgage Loan
Noteholder, shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the applicable Master Servicer or its designee and
shall deliver to the applicable Master Servicer or its designee such
accompanying release or discharge, duly executed. No expenses incurred in
connection with preparing or recording any instrument of satisfaction or deed of
reconveyance shall be chargeable to a Collection Account, any Companion Note
Custodial Account, any Subordinate Note Custodial Account or the Distribution
Account. If the Mortgage has been recorded in the name of MERS or its designee,
the applicable Master Servicer shall take all necessary action to reflect the
release of the Mortgage on the records of MERS.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the applicable Master Servicer or the
Special Servicer shall otherwise require any Mortgage File (or any portion
thereof) or, in the case of a Serviced Non-Pooled Mortgage Loan, the related
Mortgage Note, then, upon request of such Master Servicer and receipt from such
Master Servicer of a Request for Release in the form of Exhibit C-1 attached
hereto signed by a Servicing Officer thereof, or upon request of the Special
Servicer and receipt from the Special Servicer of a Request for Release in the
form of Exhibit C-2 attached hereto, the Trustee or, in the case of a Serviced
Non-Pooled Mortgage Loan, the related Serviced Non-Pooled Mortgage Loan
Noteholder shall release, or the Trustee shall cause any related Custodian to
release, such Mortgage File (or portion thereof) or such Mortgage Note to such
Master Servicer or the Special Servicer, as the case may be, or its designee.
Upon return of such Mortgage File (or portion thereof) to the Person from whom
it was obtained as described above, or upon the Special Servicer's delivery to
such Person of an Officer's Certificate stating that (i) such Mortgage Loan was
liquidated and all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Collection Account, the
related Companion Note Custodial Account(s) (if any) and/or the related
Subordinate Note Custodial Account(s) (if any) pursuant to Section 3.04 have
been or will be so deposited or (ii) such Mortgage Loan has become an REO
Mortgage Loan, a copy of the Request for Release shall be returned to the
applicable Master Servicer or the Special Servicer, as applicable, by the Person
to whom it was delivered as described above.
(c) Within five (5) Business Days of the Special Servicer's request
therefor (or, in case of an exigency, within such shorter period as is
reasonable under the circumstances), the Trustee and, in the case of a Serviced
Mortgage Loan Group, each Serviced Non-Pooled Mortgage Loan Noteholder shall
execute and deliver to the Special Servicer, in the form supplied to the Trustee
or the related Serviced Non-Pooled Mortgage Loan Noteholder, as applicable, by
the Special Servicer, any court pleadings, requests for trustee's sale or other
documents reasonably necessary, with respect to any Mortgage Loan, to the
foreclosure or trustee's sale in respect of the related Mortgaged Property or to
any legal action brought to obtain judgment against the related Borrower on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust, a Master Servicer, the Special Servicer or any related
Serviced Non-Pooled Mortgage Loan Noteholder; provided that the Trustee and each
such Serviced Non-Pooled Mortgage Loan Noteholder may alternatively execute and
deliver to the Special Servicer, in the form supplied to the Trustee and such
Serviced Non-Pooled Mortgage Loan Noteholder, as applicable, by the Special
Servicer, a limited power of attorney issued in favor of the Special Servicer,
subject to Section 3.01(b), and empowering the Special Servicer to execute and
deliver any or all of such pleadings or documents on behalf of the Trustee and
each Serviced Non-Pooled Mortgage Loan Noteholder (however, neither the Trustee
nor any such Serviced Non-Pooled Mortgage Loan Noteholder shall be liable for
any misuse of such power of attorney by the Special Servicer). Together with
such pleadings or documents (or such power of attorney), the Special Servicer
shall deliver to the Trustee or such Serviced Non-Pooled Mortgage Loan
Noteholder an Officer's Certificate requesting that such pleadings or documents
(or such power of attorney) be executed by the Trustee or such Serviced
Non-Pooled Mortgage Loan Noteholder and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee or such Serviced Non-Pooled Mortgage Loan Noteholder (or by the
Special Servicer on behalf of such Person) will not invalidate or otherwise
affect the lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale. Within five (5) Business Days
following receipt, the Trustee shall forward any documents it receives related
to the servicing of the Pooled Mortgage Loans (including but not limited to any
court pleadings and other documents related to legal action involving any
Mortgagor or Mortgaged Property) to the applicable Master Servicer or Special
Servicer, as the case may be. Upon delivery of such documents, the Trustee shall
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not be liable for any loss, claim or expense related to any failure by such
Master Servicer or Special Servicer to process such documentation in a timely
fashion. Any document delivered to a Master Servicer or Special Servicer shall
be deemed to have been duly delivered when delivered via overnight carrier to
the address of such party as set forth in Section 12.05.
(d) If from time to time, pursuant to the terms of a Mortgage Loan
Group Intercreditor Agreement and the related Non-Trust Servicing Agreement
related to a Non-Trust-Serviced Pooled Mortgage Loan, and as appropriate for
enforcing the terms of, or otherwise properly servicing, such Non-Trust-Serviced
Pooled Mortgage Loan, the related Non-Trust Master Servicer, the related
Non-Trust Special Servicer or the holder of a related Non-Pooled Pari Passu
Companion Loan requests delivery to it of the original Mortgage Note for such
Non-Trust-Serviced Pooled Mortgage Loan, then the Trustee shall release or cause
the release of such original Mortgage Note to the requesting party or its
designee. In connection with the release of the original Mortgage Note for a
Non-Trust-Serviced Pooled Mortgage Loan in accordance with the preceding
sentence, the Trustee shall obtain such documentation as is appropriate to
evidence the holding by the related Non-Trust Master Servicer, the related
Non-Trust Special Servicer or such holder of a related Non-Pooled Pari Passu
Companion Loan, as the case may be, of such original Mortgage Note as custodian
on behalf of and for the benefit of the Trustee.
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances; Payment of
Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan (including each Specially Serviced Mortgage Loan), and each
successor REO Mortgage Loan thereto, as to which it is the applicable Master
Servicer. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with June 2006) or any applicable portion thereof, the Master
Servicing Fee shall accrue at the related Master Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan or such REO Mortgage Loan, as the
case may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Mortgage Loan or REO Mortgage Loan, as the case may be, and
for the same number of days respecting which any related interest payment due on
such Mortgage Loan or deemed to be due on such REO Mortgage Loan is computed
under the terms of the related Mortgage Note (as such terms may be changed or
modified at any time following the Closing Date) and applicable law. The Master
Servicing Fee with respect to any Mortgage Loan or any REO Mortgage Loan shall
cease to accrue (but not as to any Replacement Pooled Mortgage Loan with respect
thereto) if a Liquidation Event occurs in respect thereof (unless, in the case
of a Serviced Mortgage Loan Group, the servicing and administration of such
Serviced Mortgage Loan Group is to continue under this Agreement pursuant to
Section 3.01(e)). Furthermore, in the case of any Serviced Non-Pooled Mortgage
Loan or any REO Mortgage Loan with respect thereto, the Master Servicing Fee
shall cease to accrue if a Liquidation Event occurs in respect of the related
Pooled Mortgage Loan (unless the servicing and administration of the related
Serviced Mortgage Loan Group is to continue under this Agreement pursuant to
Section 3.01(e)). Master Servicing Fees earned with respect to any Mortgage Loan
or any REO Mortgage Loan shall be payable monthly from payments of interest on
such Mortgage Loan or REO Revenues allocable as interest on such REO Mortgage
Loan, as the case may be. The applicable Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Mortgage Loan or any REO
Mortgage Loan out of the portion any related Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds allocable as interest on such Mortgage Loan or
REO Mortgage Loan, as the case may be. Master Servicing Fees earned with respect
to a Serviced Non-Pooled Pari Passu Companion Loan (or any successor REO
Mortgage Loan with respect thereto) shall be payable out of the related
Companion Note Custodial Account as provided in Section 3.05(f). Master
Servicing Fees earned with respect to a Serviced Non-Pooled Subordinate Loan (or
any successor REO Mortgage Loan with respect thereto) or any Non-Pooled
Subordinate Loan (or any successor REO Mortgage Loan with respect thereto) shall
be payable out of the related Subordinate Note Custodial Account as provided in
Section 3.05(g). The Servicer Report Administrator shall be entitled to the
Servicer Report Administrator Fee (payable as provided in Section 8.05(a)) in
respect of all the Pooled Mortgage Loans and successor REO Mortgage Loans
thereto. Notwithstanding any contrary provision set forth above, in no event
shall a Master Servicing Fee be payable hereunder with respect to any Mortgage
Loan that is neither a Pooled
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Mortgage Loan nor a Serviced Mortgaged Loan. The applicable Master Servicer
shall pay, solely from the Master Servicing Fee to which the Master Servicer is
otherwise entitled, any Primary Servicing Fee to which the Primary Servicer for
the related Mortgage Loan is entitled (unless such Primary Servicing Fee has
been retained from collections by the Primary Servicer pursuant to the Primary
Servicing Agreement).
PAR and any successor holder of the Excess Servicing Fee Rights that
relate to the Serviced Mortgage Loans (and any successor REO Mortgage Loans with
respect to such Serviced Mortgage Loans) for which PAR is the applicable Master
Servicer shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in
part), and WFB and any successor holder of the Excess Servicing Fee Rights that
relate to the Serviced Mortgage Loans (and any successor REO Mortgage Loans with
respect to such Serviced Mortgage Loans) for which WFB is the applicable Master
Servicer shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in
part), in either case, to any Qualified Institutional Buyer or Institutional
Accredited Investor (other than a Plan), provided that no such transfer, sale,
pledge or other assignment shall be made unless (i) that transfer, sale, pledge
or other assignment is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws and
is otherwise made in accordance with the Securities Act and such state
securities laws, (ii) the prospective transferor shall have delivered to the
Depositor a certificate substantially in the form attached as Exhibit F-3A
hereto, and (iii) the prospective transferee shall have delivered to PAR or WFB,
as applicable, and the Depositor a certificate substantially in the form
attached as Exhibit F-3B hereto. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify an Excess Servicing
Fee Right under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer, sale,
pledge or assignment of an Excess Servicing Fee Right without registration or
qualification. PAR, WFB and each holder of an Excess Servicing Fee Right
desiring to effect a transfer, sale, pledge or other assignment of such Excess
Servicing Fee Right shall, and each of PAR and WFB hereby agrees, and each such
holder of an Excess Servicing Fee Right by its acceptance of such Excess
Servicing Fee Right shall be deemed to have agreed, in connection with any
transfer of such Excess Servicing Fee Right effected by such Person, to
indemnify the Certificateholders, the Trust, the Depositor, the Underwriters,
the Certificate Administrator, the Trustee, the Master Servicers, the
Certificate Registrar and the Special Servicers against any liability that may
result if such transfer is not exempt from registration and/or qualification
under the Securities Act or other applicable federal and state securities laws
or is not made in accordance with such federal and state laws or in accordance
with the foregoing provisions of this paragraph. By its acceptance of an Excess
Servicing Fee Right, the holder thereof shall be deemed to have agreed not to
use or disclose such information in any manner that could result in a violation
of any provision of the Securities Act or other applicable securities laws or
that would require registration of such Excess Servicing Fee Right or any
Non-Registered Certificate pursuant to the Securities Act. From time to time
following any transfer, sale, pledge or assignment of an Excess Servicing Fee
Right, the Person then acting as the Master Servicer with respect to the related
Serviced Mortgage Loan or successor REO Mortgage Loan with respect thereto to
which the Excess Servicing Fee Right relates, shall pay, out of each amount paid
to such Master Servicer as Master Servicing Fees with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be, the related Excess Servicing Fees
to the holder of such Excess Servicing Fee Right within one Business Day
following the payment of such Master Servicing Fees to such Master Servicer, in
each case in accordance with payment instructions provided by such holder in
writing to such Master Servicer. The holder of an Excess Servicing Fee Right
shall not have any rights under this Agreement except as set forth in the
preceding sentences of this paragraph. None of the Certificate Administrator,
the other Master Servicer, the Certificate Registrar, the Depositor, the Special
Servicer, the Trustee or the Tax Administrator shall have any obligation
whatsoever regarding payment of the Excess Servicing Fee or the assignment or
transfer of the Excess Servicing Fee Right.
A Master Servicer's right to receive the Master Servicing Fees (and,
in the case of the Servicer Report Administrator, the Servicer Report
Administrator Fees) to which it is entitled may not be transferred in whole or
in part except in connection with the transfer of all of such Master Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein, including as contemplated by the prior paragraph.
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(b) Each Master Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) any and all Net Default Charges actually collected with
respect to any Serviced Pooled Mortgage Loan for which such Master Servicer
is the applicable Master Servicer or any successor REO Mortgage Loan with
respect thereto, to the extent that such Net Default Charges are payable to
such Master Servicer under Section 3.26 and any and all application and
processing fees for consents to approvals of assignments and assumptions,
further encumbrances or other lender approvals, to the extent actually
collected during the related Collection Period with respect to Performing
Serviced Mortgage Loans for which such Master Servicer is the applicable
Master Servicer;
(ii) (x) 50% of assumption fees, modification fees, extension
fees, consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees or other similar fees (excluding Prepayment
Premiums, Yield Maintenance Charges and application and processing fees),
in each case to the extent actually collected during the related Collection
Period with respect to Performing Serviced Mortgage Loans for which such
Master Servicer is the applicable Master Servicer and paid in connection
with a consent, approval or other action that the applicable Master
Servicer is not permitted to take in the absence of the consent or approval
(or deemed consent or approval) of the applicable Special Servicer under
the other provisions of this Agreement and (y) 100% of assumption fees,
modification fees, extension fees, consent fees, release fees, waiver fees,
fees paid in connection with defeasance and earn-out fees or other similar
fees (excluding Prepayment Premiums, Yield Maintenance Charges and
application and processing fees), in each case to the extent actually
collected during the related Collection Period with respect to Performing
Serviced Mortgage Loans for which such Master Servicer is the applicable
Master Servicer and paid in connection with a consent, approval or other
action that such Master Servicer is permitted to take in the absence of the
consent or approval (or deemed consent or approval) of the applicable
Special Servicer under the other provisions of this Agreement;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other loan
processing fees actually paid by the Borrowers under Serviced Mortgage
Loans for which such Master Servicer is the applicable Master Servicer;
(iv) any and all Prepayment Interest Excesses collected with
respect to the Pooled Mortgage Loans for which such Master Servicer is the
applicable Master Servicer;
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage).
To the extent that any of the amounts described in clauses (i) through
(iv) in the preceding paragraph are collected by a Special Servicer, such
Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
(c) As compensation for its activities hereunder, each Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan for which it is the applicable
Special Servicer, and each REO Mortgage Loan thereto that relates to an
Administered REO Property for which it is the applicable Special Servicer. As to
each such Specially Serviced Mortgage Loan and REO Mortgage Loan, for any
particular calendar month or applicable portion thereof, the Special Servicing
Fee shall accrue at the Special Servicing Fee Rate on the Stated Principal
Balance of such Specially Serviced Mortgage Loan or such REO Mortgage Loan, as
the case may be, and shall be calculated on the same Interest Accrual Basis as
is applicable for such Specially Serviced Mortgage Loan or REO Mortgage Loan, as
the case may be, and for the same number of days respecting which any related
interest payment due on such Specially Serviced Mortgage Loan or deemed to be
due on such REO Mortgage Loan is computed under the terms of the related
Mortgage Note (as such terms may be changed or modified at any time following
the
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Closing Date) and applicable law. The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan that is a Pooled Mortgage Loan or any successor
REO Mortgage Loan thereto shall cease to accrue as of the date a Liquidation
Event occurs in respect thereof or, in the case of such a Specially Serviced
Mortgage Loan, as of the date it becomes a Corrected Mortgage Loan. The Special
Servicing Fee with respect to any Serviced Non-Pooled Mortgage Loan or any
successor REO Mortgage Loan with respect thereto shall cease to accrue as of the
date a Liquidation Event occurs in respect of the related Pooled Mortgage Loan
or REO Property included in the same Mortgage Loan Group or, in the case of such
a Specially Serviced Mortgage Loan, as of the date it becomes a Corrected
Mortgage Loan. Earned but unpaid Special Servicing Fees with respect to Pooled
Mortgage Loans that are Specially Serviced Mortgage Loans and REO Pooled
Mortgage Loans shall be payable (pursuant to Section 3.05(a)) monthly first out
of related Liquidation Proceeds, Insurance Proceeds and/or Condemnation
Proceeds, if any, and then out of general collections on the Pooled Mortgage
Loans and any REO Properties on deposit in the applicable Collection Account and
earned but unpaid Special Servicing Fees with respect to any Serviced Non-Pooled
Mortgage Loan or any successor REO Mortgage Loan with respect thereto shall be
payable in accordance with the related Mortgage Loan Group Intercreditor
Agreement and solely out of the proceeds of such Serviced Non-Pooled Mortgage
Loan; provided, however, that any Special Servicing Fees earned with respect to
a Pooled Mortgage Loan in a Serviced Mortgage Loan Group that has a Serviced
Non-Pooled Subordinate Loan will be payable out of collections on or with
respect to the related Serviced Non-Pooled Subordinate Loan and/or the related
Serviced Non-Pooled Subordinate Noteholder's share of collections on any related
REO Property prior to payment out of any collections otherwise described above.
As further compensation for its activities hereunder, each Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Serviced Mortgage Loan that is a Corrected Mortgage Loan and for which such
Special Servicer is the applicable Special Servicer, unless the basis on which
such Serviced Mortgage Loan became a Corrected Mortgage Loan was the remediation
of a circumstance or condition relating to the related Pooled Mortgage Loan
Seller's obligation to repurchase such Mortgage Loan pursuant to the related
Pooled Mortgage Loan Purchase Agreement, as applicable, in which case, if such
Mortgage Loan is repurchased within the Initial Resolution Period (and, if
applicable any Resolution Extension Period as is permitted under Section 2.03)
no Workout Fee will be payable from or based upon the receipt of, any Purchase
Price paid by the related Pooled Mortgage Loan Seller in satisfaction of such
repurchase obligation. As to each such Corrected Mortgage Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Post-ARD Additional Interest
and Default Interest) and principal received from the related Borrower on such
Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan and
any Workout Fees earned with respect to any Serviced Non-Pooled Mortgage Loan or
any successor REO Mortgage Loan with respect thereto shall be payable in
accordance with the related Mortgage Loan Group Intercreditor Agreement and
solely out of the proceeds of such Serviced Non-Pooled Mortgage Loan; provided,
however, that any Workout Fees earned with respect to a Pooled Mortgage Loan
(and, if such Pooled Mortgage Loan has a related Non-Pooled Pari Passu Companion
Loan, such Non-Pooled Pari Passu Companion Loan) in a Serviced Mortgage Loan
Group that has a Serviced Non-Pooled Subordinate Loan will be payable out of any
proceeds on or with respect to such Serviced Non-Pooled Subordinate Loan and/or
the related Serviced Non-Pooled Subordinate Noteholder's share of proceeds on
such related REO Property prior to any proceeds on or with respect to the Pooled
Mortgage Loan (and, if such Pooled Mortgage Loan has a related Non-Pooled Pari
Passu Companion Loan, such Non-Pooled Pari Passu Companion Loan) and/or the
Trust's (and, if such Pooled Mortgage Loan has a related Non-Pooled Pari Passu
Companion Loan, the related Non-Pooled Noteholder's) share of proceeds on such
related REO Property as otherwise described above. The Workout Fee with respect
to any Corrected Mortgage Loan will cease to be payable if such Corrected
Mortgage Loan again becomes a Specially Serviced Mortgage Loan or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee
would become payable if and when such Serviced Mortgage Loan again became a
Corrected Mortgage Loan after having again become a Specially Serviced Mortgage
Loan. If a Special Servicer is terminated or resigns, such Special Servicer
shall retain the right (and the applicable successor Special Servicer shall not
have the right) to receive any and all Workout Fees payable in respect of (i)
any Serviced Mortgage Loans serviced by such Special Servicer that became
Corrected Mortgage Loans during the period that it acted as Special Servicer and
that were still Corrected Mortgage Loans at the time of such termination or
resignation and (ii) unless such Special Servicer was terminated for cause (in
which case only clause (i) above shall apply), any Serviced Mortgage Loans that
constitute Specially Serviced Mortgage Loans for which such Special Servicer has
resolved the circumstances and/or conditions
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causing any such Mortgage Loan to be a Specially Serviced Mortgage Loan such
that the related Borrower has made, as of the date of such termination or
resignation, at least one timely Monthly Payment required by the terms of the
workout and such Mortgage Loan otherwise meets the requirements of a Corrected
Mortgage Loan, with the Workout Fee with respect to such Mortgage Loan payable
only after such requirements have been satisfied; provided, however, that (A) in
either case no other event has occurred as of the time of such Special
Servicer's termination or resignation that would otherwise cause such Mortgage
Loan to again become a Specially Serviced Mortgage Loan and (B) in the case of
any Specially Serviced Mortgage Loan described in clause (ii) of this sentence,
such terminated Special Servicer shall immediately deliver the related Servicing
File to the applicable Master Servicer, and the applicable Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Mortgage Loan's becoming a Corrected Mortgage Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new applicable Special
Servicer if and when it becomes apparent to the applicable Master Servicer that
such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, each Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Serviced Mortgage Loan for which it is the applicable Special Servicer and
that is a Specially Serviced Mortgage Loan as to which it receives any full,
partial or discounted payoff from the related Borrower and with respect to each
Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan and
Administered REO Property for which it is the applicable Special Servicer and as
to which it receives any Condemnation Proceeds, Insurance Proceeds or
Liquidation Proceeds (other than in connection with (A) the purchase of any such
Specially Serviced Mortgage Loan by the General Special Servicer or the Majority
Controlling Class Certificateholder(s) pursuant to or as contemplated by Section
3.18, (B) the purchase or other acquisition of any such Specially Serviced
Mortgage Loan or Administered REO Property by any Controlling Class
Certificateholder(s), the Sole Certificateholder(s), a Master Servicer or a
Special Servicer pursuant to Section 9.01, (C) the repurchase or replacement of
any such Specially Serviced Mortgage Loan or Administered REO Property by a
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement as a result of a Material Breach or Material Document Defect,
(D) in the case of a Mortgage Loan included in a Serviced Mortgage Loan Group or
any related Administered REO Property, the purchase or other acquisition of any
such Specially Serviced Mortgage Loan or Administered REO Property by any
related Non-Pooled Mortgage Loan Noteholder pursuant to or as contemplated by
Sections 3.27 and/or 3.28, as applicable, or (E) the purchase of any such
Specially Serviced Mortgage Loan or Administered REO Property by any other
creditor of the related Borrower or any of its Affiliates or other equity
holders pursuant to a right under the related Mortgage Loan Documents (provided
that such right is exercised within the period and in the manner required under
such Mortgage Loan Documents and the payment of the Liquidation Fee would not
otherwise be covered by the price to be paid by such creditor). In no event
shall any Liquidation Fee accrue or be payable in connection with any
Liquidation Event involving a Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property (including any purchase of such Mortgage Loan by the holder
of any related Non-Trust-Serviced Non-Pooled Pari Passu Companion Loan in
accordance with the related Mortgage Loan Group Intercreditor Agreement and the
related Non-Trust Servicing Agreement). As to each such Specially Serviced
Mortgage Loan or Administered REO Property for which the Special Servicer is
entitled to a Liquidation Fee as set forth above, such Liquidation Fee shall be
payable out of, and shall be calculated by application of the Liquidation Fee
Rate to, any such full, partial or discounted payoff, Condemnation Proceeds,
Insurance Proceeds and/or Liquidation Proceeds received or collected in respect
thereof (other than any portion of such payment or proceeds that represents
Post-ARD Additional Interest or Default Charges) and any Liquidation Fees earned
with respect to any Serviced Non-Pooled Subordinate Loan will be payable solely
out of collections on such Serviced Non-Pooled Subordinate Loan; provided,
however, that any Liquidation Fees earned with respect to a Serviced Mortgage
Loan in a Serviced Mortgage Loan Group that has a Serviced Non-Pooled
Subordinate Loan shall be payable out of any collections on or with respect to
such related Serviced Non-Pooled Subordinate Loan and/or the related Serviced
Non-Pooled Subordinate Noteholder's share of collections on any related REO
Property prior to payment out of any collections otherwise described above. The
Liquidation Fee with respect to any such Specially Serviced Mortgage Loan will
not be payable if such Specially Serviced Mortgage Loan becomes a Corrected
Mortgage Loan.
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A Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
such Special Servicer's responsibilities and obligations under this Agreement
and except as otherwise expressly provided herein.
(d) Each Special Servicer shall be entitled to receive the following
items as additional special servicing compensation (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges actually collected with
respect to any Serviced Pooled Mortgage Loan for which such Special
Servicer is the applicable Special Servicer or any successor REO Mortgage
Loan with respect thereto, to the extent that such Net Default Charges are
payable to such Special Servicer under Section 3.26; and any and all
assumption fees, assumption application and processing fees, modification
fees, extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees or other similar fees
(excluding Prepayment Premiums and Yield Maintenance Charges), to the
extent actually collected during the related Collection Period with respect
to any Specially Serviced Mortgage Loans or any REO Mortgage Loans (other
than any Non-Trust-Serviced Mortgage Loan or any successor REO Property
with respect thereto) for which such Special Servicer is the applicable
Special Servicer;
(ii) 50% of any assumption fees, modification fees, extension
fees, consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees or other similar fees (excluding Prepayment
Premiums, Yield Maintenance Charges and application and processing fees),
in each case to the extent actually collected during the related Collection
Period with respect to Performing Serviced Mortgage Loans for which such
Special Servicer is the applicable Special Servicer in connection with a
consent, approval or other action that the applicable Master Servicer is
not permitted to take in the absence of the consent or approval (or deemed
consent or approval) of such Special Servicer under the other provisions of
this Agreement; and
(iii) interest or other income earned on deposits in any REO
Account maintained by such Special Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to such REO Account for each Collection Period).
To the extent that any of the amounts described in clauses (i) and
(ii) of the preceding paragraph are collected by a Master Servicer, such Master
Servicer shall promptly pay such amounts to the applicable Special Servicer and
shall not be required to deposit such amounts in such Master Servicer's
Collection Account, any Companion Note Custodial Account or any Subordinate Note
Custodial Account pursuant to Section 3.04.
(e) The Master Servicers and the Special Servicers shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any of Sub-Servicers retained
by it (including any termination fees) and the premiums for any blanket policy
or the standby fee or similar premium, if any, for any master force placed
policy obtained by it insuring against hazard losses pursuant to Section
3.07(b)), if and to the extent such expenses are not payable directly out of any
Collection Account, any Companion Note Custodial Account, any Subordinate Note
Custodial Account, any Servicing Account, Reserve Account or REO Account, and
none of the Master Servicers or the Special Servicers shall be entitled to
reimbursement for any such expense incurred by it except as expressly provided
in this Agreement. If either Master Servicer is required to make any Servicing
Advance hereunder at the discretion of a Special Servicer in accordance with
Section 3.19 or otherwise, such Special Servicer shall promptly provide such
Master Servicer with such documentation regarding the subject Servicing Advance
as such Master Servicer may reasonably request.
(f) If a Master Servicer or, as contemplated by Section 3.19, a
Special Servicer is required under this Agreement to make a Servicing Advance,
but fails to do so within ten (10) days after such Advance is required to be
made, the Trustee shall, if it has actual knowledge of such failure on the part
of such Master Servicer or such Special Servicer, as the case may be, give
notice of such failure to the defaulting party. If such Advance is not made by
such Master Servicer or such Special Servicer, as the case may be, within one
Business Day after receipt of such notice, then (subject to Section 3.11(h)
below) the Trustee shall make such Advance.
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(g) The Master Servicers, the Special Servicers and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Servicing Advance made thereby (with
its own funds), for so long as such Servicing Advance is outstanding (it being
acknowledged that Advance Interest shall not accrue on Unliquidated Advances
related to prior Servicing Advances). Such interest with respect to any
Servicing Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.26, out of any Default Charges subsequently collected on or in respect of
the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such
Servicing Advance relates; and (ii) then, after such Servicing Advance is
reimbursed, but only if and to the extent that such Default Charges are
insufficient to cover such Advance Interest, out of general collections on the
Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's
Collection Account or, as and to the extent contemplated by the second paragraph
of Section 3.05(a), the other Master Servicer's Collection Account (subject to,
however, the proviso at the end of the first paragraph of subsection (I) of
Section 3.05(a)). The applicable Master Servicer shall (subject to the operation
of Section 3.05(a)(II)) reimburse itself, the applicable Special Servicer or the
Trustee, as appropriate, for any Servicing Advance made by any such Person with
respect to any Mortgage Loan or REO Property as to which such Master Servicer is
the applicable Master Servicer as soon as practicable after funds available for
such purpose are deposited in such Master Servicer's Collection Account or the
related Companion Note Custodial Account or the related Subordinate Note
Custodial Account, as applicable.
(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicers, the Special Servicers or the Trustee shall be required to
make any Servicing Advance that would, if made, constitute a Nonrecoverable
Servicing Advance. The determination by any Person with an obligation hereunder
to make Servicing Advances that it has made a Nonrecoverable Servicing Advance
or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be made by such Person in its
reasonable, good faith judgment. In making such recoverability determination,
such Person will be entitled to consider (among other things) only the
obligations of the Borrower under the terms of the related Mortgage Loan as it
may have been modified, to consider (among other things) the related Mortgaged
Properties in their "as is" or then current conditions and occupancies, as
modified by such party's assumptions regarding the possibility and effects of
future adverse change with respect to such Mortgaged Properties, to estimate and
consider (among other things) future expenses and to estimate and consider
(among other things) the timing of recoveries. In addition, any such Person may
update or change its recoverability determinations at any time and may obtain
any analysis, Appraisals or market value estimates or other information in the
possession of the applicable Special Servicer for such purposes. Any
determination by any Person with an obligation hereunder to make Servicing
Advances that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be evidenced by an Officer's Certificate delivered promptly to
the Depositor, the Certificate Administrator, the Trustee (unless it is the
Person making such determination), the applicable Special Servicer and the
Controlling Class Representative and, if a Serviced Mortgage Loan Group is
involved, the applicable Serviced Non-Pooled Mortgage Loan Noteholder(s),
setting forth the basis for such determination, accompanied by a copy of any
Appraisal of the related Mortgaged Property or REO Property performed within the
12 months preceding such determination by a Qualified Appraiser, and, if such
reports were used by the Master Servicer or the Trustee to determine that any
Servicing Advance is or would be nonrecoverable, further accompanied by any
other information, including engineers' reports, environmental surveys or
similar reports, that the Person making such determination may have obtained.
Notwithstanding the foregoing, absent bad faith, any such determination as to
the recoverability of any Servicing Advance shall be conclusive and binding on
the Certificateholders and, in all cases, the Trustee shall be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the applicable Master Servicer or Special Servicer or, if appropriate,
any party under the related Non-Trust Servicing Agreement (in the case of a
Non-Trust-Serviced Pooled Mortgage Loan) with respect to a particular Servicing
Advance for any Mortgage Loan or REO Property, and the applicable Master
Servicer and the applicable Special Servicer shall each be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the other such party or, if appropriate, any party under the related
Non-Trust Servicing Agreement (in the case of a Non-Trust-Serviced Pooled
Mortgage Loan) with respect to a particular Servicing Advance for any Mortgage
Loan or REO Property. The applicable Special Servicer shall promptly furnish any
party required to make Servicing Advances hereunder with any information in its
possession regarding the Specially Serviced Pooled Mortgage Loans and REO
Properties as such party required to make Servicing Advances may reasonably
request. A copy of any such Officer's
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Certificate (and accompanying information) of a Master Servicer shall also be
delivered promptly to the applicable Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the applicable Special
Servicer shall also be promptly delivered to the Master Servicer for the subject
Mortgage Loan or REO Property, and a copy of any such Officer's Certificates
(and accompanying information) of the Trustee or any Fiscal Agent shall also be
promptly delivered to the Certificate Administrator, the Controlling Class
Representative, the applicable Special Servicer, the applicable Master Servicer
and, if a Serviced Mortgage Loan Group is involved, the related Serviced
Non-Pooled Mortgage Loan Noteholder(s). The applicable Master Servicer shall
consider Unliquidated Advances in respect of prior Servicing Advances as
outstanding Advances for purposes of recoverability determinations as if such
Unliquidated Advance were a Servicing Advance.
The applicable Special Servicer for each Serviced Mortgage Loan shall
also be entitled to make a determination (subject to the same standards and
procedures that apply in connection with a determination by the applicable
Master Servicer) to the effect that a prior Servicing Advance (or Unliquidated
Advance in respect thereof) previously made hereunder by the applicable Master
Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance by the applicable Master Servicer
(or, if applicable, the Trustee), if made, would constitute a Nonrecoverable
Servicing Advance, in which case such Servicing Advance shall constitute a
Nonrecoverable Servicing Advance for all purposes of this Agreement.
(i) Notwithstanding anything to the contrary set forth herein, the
applicable Master Servicer may (and, at the direction of the applicable Special
Servicer if a Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan
or an Administered REO Property is involved, shall) pay directly out of such
Master Servicer's Collection Account any servicing expense that, if paid by the
applicable Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance for the subject Mortgage Loan or REO Property;
provided that (A) it shall be a condition to such payment that the applicable
Master Servicer (or the applicable Special Servicer, if a Specially Serviced
Mortgage Loan or an Administered REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders and, if applicable, the Serviced Non-Pooled
Mortgage Loan Noteholders (as a collective whole), as evidenced by an Officer's
Certificate delivered promptly to the Depositor, the Certificate Administrator,
the Trustee and the Controlling Class Representative and, if a Serviced Mortgage
Loan Group is involved, the related Serviced Non-Pooled Mortgage Loan
Noteholder(s), setting forth the basis for such determination and accompanied by
any information that such Person may have obtained that supports such
determination; (B) if such servicing expense relates to a Serviced Mortgage Loan
Group, the payment of such expense shall be subject to the proviso at the end of
the first paragraph of subsection (I) of Section 3.05(a); and (C) such servicing
expense shall be deemed to constitute a Nonrecoverable Advance for purposes of
subsection (II)(iv) of Section 3.05(a) and the definition of "Principal
Distribution Amount" and the terms and conditions set forth in such subsection
that are applicable to Nonrecoverable Advances shall apply to such servicing
expense. A copy of any such Officer's Certificate (and accompanying information)
of a Master Servicer shall also be delivered promptly to the Controlling Class
Representative (and, if a Serviced Mortgage Loan Group is involved, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)) and the applicable Special
Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the applicable Special Servicer shall also be promptly delivered
to the applicable Master Servicer and the Controlling Class Representative (and,
if a Serviced Mortgage Loan Group is involved, the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)).
SECTION 3.12. Property Inspections; Collection of Financial
Statements.
(a) The applicable Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property securing a Specially
Serviced Mortgage Loan as soon as practicable (but in any event not later than
60 days) after the subject Serviced Mortgage Loan becomes a Specially Serviced
Mortgage Loan (and such Special Servicer shall continue to perform or cause to
be performed a physical inspection of the subject Mortgaged Property at least
once per calendar year thereafter for so long as the subject Serviced Mortgage
Loan remains a Specially Serviced Mortgage Loan or if such Mortgaged Property
becomes an REO Property); provided that such Special Servicer shall be entitled
to reimbursement of the reasonable and direct out-of-pocket expenses incurred by
it in connection with each such inspection as Servicing Advances and otherwise
as contemplated by Section 3.05(a). The applicable Master Servicer
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shall, at its own expense, inspect or cause to be inspected each Mortgaged
Property (other than the Mortgaged Property securing a Non-Trust-Serviced Pooled
Mortgage Loan, Mortgaged Properties related to Specially Serviced Mortgage Loans
and REO Properties), every calendar year beginning in 2007, or every second
calendar year beginning in 2007 if the unpaid principal balance of the related
Serviced Pooled Mortgage Loan is less than $2,000,000; provided that with
respect to any Serviced Pooled Mortgage Loan (other than a Specially Serviced
Pooled Mortgage Loan) that has an unpaid principal balance of less than
$2,000,000 and has been placed on the CMSA Servicer Watch List, the applicable
Master Servicer, at its own expense, shall, at the request of the Controlling
Class Representative (or, if such Serviced Pooled Mortgage Loan is included in a
Serviced Mortgage Loan Group, at the request of either the Controlling Class
Representative or the related Serviced Mortgage Loan Group Controlling Party if
and to the extent required under the applicable Mortgage Loan Group
Intercreditor Agreement), inspect or cause to be inspected the related Mortgaged
Property every calendar year beginning in 2007 so long as such Mortgage Loan
continues to be on the CMSA Servicer Watch List; and provided, further, that
neither Master Servicer will be obligated to inspect any particular Mortgaged
Property during any one-year or two-year, as applicable, period contemplated
above in this sentence, if the applicable Special Servicer has already done so
during that period pursuant to the preceding sentence. Each of the Master
Servicers and the Special Servicers shall prepare (and, promptly following
preparation, if there has been a material adverse change in the condition of the
subject Mortgaged Property or REO Property, as applicable), deliver to or make
available (on such Master Servicer's or Special Servicer's internet website) to
the Trustee, the Controlling Class Representative, the applicable Master
Servicer or Special Servicer (and, if a Mortgaged Property or REO Property
relates to a Serviced Mortgage Loan Group, the related Serviced Non-Pooled
Mortgage Loan Noteholder(s) if and to the extent required under the applicable
Mortgage Loan Group Intercreditor Agreement), and the Rating Agencies) a written
report of each such inspection performed by it or on its behalf that sets forth
in detail the condition of the subject Mortgaged Property and that specifies the
occurrence or existence of: (i) any vacancy in the Mortgaged Property that is,
in the reasonable judgment of such Master Servicer or Special Servicer (or its
respective designee), as the case may be, material and is evident from such
inspection, (ii) any abandonment of the Mortgaged Property, (iii) any change in
the condition or value of the Mortgaged Property that is, in the reasonable
judgment of such Master Servicer or Special Servicer (or its respective
designee), as the case may be, material and is evident from such inspection,
(iv) any waste on or deferred maintenance in respect of the Mortgaged Property
that is evident from such inspection or (v) any capital improvements made that
are evident from such inspection. Such report may be in the form of the standard
property inspection report (or such other form for the presentation of such
information) as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally. Each of the Master Servicers
and the Special Servicers shall deliver to the Controlling Class Representative,
and, if applicable, the applicable Serviced Non-Pooled Mortgage Loan
Noteholder(s) and, upon request, to the Certificate Administrator and the
Trustee a copy (or image in suitable electronic media) of each such written
report prepared by it, in each case within 30 days following the request (or, if
later or if request is not required, within 30 days following the later of
completion of the related inspection if the inspection is performed by the
applicable Master Servicer or Special Servicer, as appropriate, or receipt of
the related inspection report if the inspection is performed by a third party).
The copy of each such inspection report that is delivered by a Master Servicer
or Special Servicer to the Controlling Class Representative shall be imaged with
the ARCap Naming Convention for Electronic File Delivery.
(b) Commencing with respect to the calendar quarter ended June 30,
2006, the applicable Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of each
Performing Serviced Mortgage Loan, shall make reasonable efforts to collect
promptly from each related Borrower quarterly and annual operating statements,
budgets and rent rolls of the related Mortgaged Property, and quarterly and
annual financial statements of such Borrower, whether or not delivery of such
items is required pursuant to the terms of the related Mortgage Loan Documents.
The applicable Master Servicer shall deliver images in suitable electronic media
(and labeled according to the ARCap Naming Convention for Electronic File
Delivery) of all of the foregoing items so collected or obtained by it to the
Persons and in the time and manner set forth in Section 4.02(d). In addition,
the applicable Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. The applicable Special Servicer shall deliver images in suitable
electronic media (and labeled according to the ARCap Naming Convention for
Electronic File Delivery) of all of the foregoing items so collected or obtained
by it to the applicable
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Master Servicer, the Controlling Class Representative and, if a Serviced
Mortgage Loan Group is involved, the applicable Serviced Non-Pooled Mortgage
Loan Noteholder(s) if and to the extent required under the applicable Mortgage
Loan Group Intercreditor Agreement, within 30 days of its receipt thereof. In
addition, to the extent that the applicable Master Servicer receives any annual
financial statements for the year-ended December 31, 2005, such Master Servicer
shall forward copies of such financial statements to the Controlling Class
Representative.
SECTION 3.13. [Reserved].
SECTION 3.14. [Reserved].
SECTION 3.15. Access to Information.
(a) Each of the Master Servicers and the Special Servicers shall
afford to the OTS, the FDIC, any other banking or insurance regulatory authority
that may exercise authority over any Certificateholder or Certificate Owner, the
Certificate Administrator, the Trustee, the Depositor, each Underwriter, each
Rating Agency, the Controlling Class Representative and each Serviced Non-Pooled
Mortgage Loan Noteholder, access to any records regarding the Mortgage Loans
(or, in the case of a Serviced Non-Pooled Mortgage Loan Noteholder, only the
related Serviced Non-Pooled Mortgage Loan) and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law,
the terms of the related Mortgage Loan Documents or contract entered into prior
to the Closing Date or to the extent such information is subject to a privilege
under applicable law to be asserted on behalf of the Certificateholders. At the
election of the applicable Master Servicer, such access may be afforded to the
Certificate Administrator, the Trustee, the Depositor, each Rating Agency, the
Controlling Class Representative and each Serviced Non-Pooled Mortgage Loan
Noteholder, by the delivery of copies of information as requested by such Person
and the applicable Master Servicer shall be permitted to require payment of a
sum sufficient to cover the reasonable out-of-pocket costs incurred by it in
making such copies (other than with respect to the Rating Agencies); provided,
however, that the applicable Master Servicer shall be entitled to require such
payment from the Controlling Class Representative in any single calendar month
only to the extent that such costs in such month exceed $100.00. Such access
shall otherwise be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the
particular Master Servicer or Special Servicer, as the case may be, designated
by it.
(b) In connection with providing access to information pursuant to
clause (a) of this Section 3.15, each of the Master Servicers and the Special
Servicers may (i) affix a reasonable disclaimer to any information provided by
it for which it is not the original source (without suggesting liability on the
part of any other party hereto); (ii) affix to any information provided by it a
reasonable statement regarding securities law restrictions on such information
and/or condition access to information on the execution of a reasonable
confidentiality agreement; (iii) withhold access to confidential information or
any intellectual property; and (iv) withhold access to items of information
contained in the Servicing File for any Serviced Mortgage Loan if the disclosure
of such items is prohibited by applicable law or the provisions of any related
Mortgage Loan Documents or would constitute a waiver of the attorney-client
privilege.
(c) Upon the request of the Controlling Class Representative or the
Serviced Loan Group Controlling Party (in connection with a Serviced Loan Group
that includes one or more Non-Pooled Subordinate Loans), as applicable, made not
more frequently than once a month during the normal business hours of the Master
Servicers and the Special Servicers, each of the Master Servicers and the
Special Servicers shall, without charge, make a knowledgeable Servicing Officer
available either by telephone (with Servicing Officers of each of the Master
Servicers and Special Servicers participating simultaneously if the Controlling
Class Representative or the related Serviced Loan Group Controlling Party, as
applicable, so requests) or, at the option of the Controlling Class
Representative or the related Serviced Loan Group Controlling Party, as
applicable, if it provides reasonable advance notice, at the office of such
Servicing Officer, to verbally answer questions from the Controlling Class
Representative or the related Serviced Loan Group Controlling Party, as
applicable, regarding the performance and servicing of the Serviced Mortgage
Loans and/or Administered REO Properties for which such Master Servicer or such
Special Servicer, as the case may be, is responsible.
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(d) Notwithstanding any provision of this Agreement to the contrary,
the failure of a Master Servicer or Special Servicer to disclose any information
otherwise required to be disclosed by it pursuant to this Agreement shall not
constitute a breach of this Agreement to the extent that such Master Servicer or
such Special Servicer, as the case may be, determines, in its reasonable and
good faith judgment consistent with the Servicing Standard, that such disclosure
would violate applicable law or any provision of a Mortgage Loan Document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties, constitute a waiver of the attorney-client privilege on
behalf of the Trust or the Trust Fund or otherwise materially harm the Trust or
the Trust Fund.
(e) None of the Master Servicers or the Special Servicers shall be
liable for providing, disseminating or withholding information in accordance
with the terms of this Agreement. In addition to their other rights hereunder,
each of the Master Servicers and the Special Servicers (and their respective
employees, attorneys, officers, directors and agents) shall, in each case, be
indemnified by the Trust Fund for any claims, losses or expenses arising from
any such provision, dissemination or withholding.
SECTION 3.16. Title to Administered REO Property; REO Account.
(a) If title to any Administered REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders (and, in the case of a Serviced Mortgage Loan Group, also
the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), or, subject to
Section 3.09(b), to a single member limited liability company of which the Trust
is the sole member, which limited liability company is formed or caused to be
formed by the applicable Special Servicer at the expense of the Trust (or, in
the case of any REO Property related to a Pooled Mortgage Loan that is part of a
Serviced Mortgage Loan Group, the Trust and the related Serviced Non-Pooled
Mortgage Loan Noteholders; it being the intention that any related Serviced
Non-Pooled Subordinate Noteholder bear such expense prior to the Trust) for the
purpose of taking title to one or more REO Properties pursuant to this
Agreement. Any such limited liability company formed by such Special Servicer
shall be a manager-managed limited liability company, with such Special Servicer
to serve as the initial manager to manage the property of the limited liability
company, including any applicable Administered REO Property, in accordance with
the terms of this Agreement as if such property was held directly in the name of
the Trust or Trustee under this Agreement. The applicable Special Servicer shall
sell any Administered REO Property in accordance with Section 3.18 by the end of
the third calendar year following the year in which the Trust acquires ownership
of such REO Property for purposes of Section 860G(a)(8) of the Code, unless such
Special Servicer either (i) applies, more than 60 days prior to the expiration
of such liquidation period, and is granted an extension of time (an "REO
Extension") by the IRS to sell such REO Property or (ii) obtains for the Trustee
an Opinion of Counsel, addressed to the Trustee, to the effect that the holding
by the Trust of such REO Property subsequent to the end of the third calendar
year following the year in which such acquisition occurred will not result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to any Grantor Trust Pool. Regardless of whether such Special
Servicer applies for or is granted the REO Extension contemplated by clause (i)
of the immediately preceding sentence or obtains the Opinion of Counsel referred
to in clause (ii) of such sentence, such Special Servicer shall act in
accordance with the Servicing Standard to liquidate the subject Administered REO
Property on a timely basis. If such Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel with respect to any Administered
REO Property, such Special Servicer shall (i) promptly forward a copy of such
REO Extension or Opinion of Counsel to the Trustee, and (ii) sell the subject
Administered REO Property within such extended period as is permitted by such
REO Extension or contemplated by such Opinion of Counsel, as the case may be.
Any expense incurred by a Special Servicer in connection with its applying for
and being granted the REO Extension contemplated by clause (i) of the third
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the third preceding sentence, and for the creation of and the
operating of a limited liability company, shall be covered by, and be
reimbursable as, a Servicing Advance.
(b) The applicable Special Servicer shall segregate and hold all funds
collected and received by it in connection with any Administered REO Property
separate and apart from its own funds and general assets. If any REO Acquisition
occurs in respect of any Mortgaged Property securing a Serviced Mortgage Loan,
then the applicable Special Servicer shall establish and maintain one or more
accounts (collectively, an "REO Account"), to be held on behalf of the Trustee
in trust for the benefit of the Certificateholders (or, in the case of any REO
Property related to a Serviced
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Mortgage Loan Group, on behalf of both the Certificateholders and the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)), as a collective whole, for the
retention of revenues and other proceeds derived from such Administered REO
Property. Each account that constitutes an REO Account shall be an Eligible
Account. The applicable Special Servicer shall deposit, or cause to be
deposited, in its REO Account, within one Business Day following receipt, all
REO Revenues, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
received in respect of an Administered REO Property. Funds in an REO Account may
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer is authorized to pay out of related Liquidation Proceeds,
Insurance Proceeds and/or Condemnation Proceeds, if any, any Liquidation
Expenses incurred in respect of an Administered REO Property and outstanding at
the time such proceeds are received, as well as any other items that otherwise
may be paid by the applicable Master Servicer out of such Liquidation Proceeds
as contemplated by Section 3.05(a). The applicable Special Servicer shall be
entitled to make withdrawals from its REO Account to pay itself, as Additional
Special Servicing Compensation, interest and investment income earned in respect
of amounts held in such REO Account as provided in Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to such REO
Account for any Collection Period). The applicable Special Servicer shall give
notice to the other parties hereto of the location of its REO Account when first
established and of the new location of such REO Account prior to any change
thereof.
(c) The applicable Special Servicer shall withdraw from its REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any Administered REO Property, but only to the
extent of amounts on deposit in such REO Account relating to such Administered
REO Property. Monthly within two (2) Business Days following the end of each
Collection Period, each Special Servicer shall withdraw from its REO Account and
deposit into the applicable Master Servicer's Collection Account, or deliver to
the applicable Master Servicer for deposit into such Collection Account, the
aggregate of all amounts received in respect of each Administered REO Property
during such Collection Period that are then on deposit in such REO Account, net
of any withdrawals made out of such amounts pursuant to the preceding sentence;
provided that (A) in the case of each Administered REO Property, the applicable
Special Servicer may retain in its REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of such
Administered REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period and (B)
if such REO Property relates to a Serviced Mortgage Loan Group, the applicable
Master Servicer shall make, from such amounts so deposited or remitted as
described above, any deposits into any related Companion Note Custodial Account
and/or related Subordinate Note Custodial Account contemplated by Section
3.04(e) or Section 3.04(f), as applicable. For the avoidance of doubt, such
amounts withdrawn from an REO Account and deposited into the applicable Master
Servicer's Collection Account following the end of each Collection Period
pursuant to the preceding sentence shall, upon such deposit, be construed to
have been received by the applicable Master Servicer during such Collection
Period.
(d) Each Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, its REO Account pursuant to Section 3.16(b) or 3.16(c).
(e) Notwithstanding anything to the contrary, this Section 3.16 shall
not apply to any REO Property related to a Non-Trust-Serviced Pooled Mortgage
Loan.
SECTION 3.17. Management of Administered REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Serviced Mortgage Loan, the applicable Special Servicer
shall review the operation of such Mortgaged Property and determine the nature
of the income that would be derived from such property if it were acquired by
the Trust. If the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions (such tax referred
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to herein as an "REO Tax"), then such Mortgaged Property may be Directly
Operated by such Special Servicer as REO Property, other than holding such
REO Property for sale or lease or performing construction work thereon;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be subject to
an REO Tax, but that a lease of such property to another party to operate
such property, or the performance of some services by an Independent
Contractor with respect to such property, or another method of operating
such property would not result in income subject to an REO Tax, then such
Special Servicer may (provided that in the judgment of such Special
Servicer, exercised in accordance with the Servicing Standard, it is
commercially reasonable) so lease or otherwise operate such REO Property;
or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
either (i) that the income or earnings with respect to such REO Property
will offset any REO Tax relating to such income or earnings and will
maximize the net recovery from the applicable REO Property to the
Certificateholders (taking into account that any related Serviced
Non-Pooled Mortgage Loan Noteholder(s) do not have any obligation under the
related Mortgage Loan Group Intercreditor Agreement to bear the effect of
any such REO Tax) or (ii) that no commercially reasonable means exists to
operate such property as REO Property without the Trust incurring or
possibly incurring an REO Tax on income from such property, then such
Special Servicer shall deliver to the Tax Administrator and the Controlling
Class Representative (and, if a Serviced Mortgage Loan Group is involved,
the related Serviced Mortgage Loan Group Controlling Party to the extent
required under the applicable Mortgage Loan Group Intercreditor Agreement),
in writing, a proposed plan (the "Proposed Plan") to manage such property
as REO Property. Such plan shall include potential sources of income and
good faith estimates of the amount of income from each such source. Within
a reasonable period of time after receipt of such plan, the Tax
Administrator shall consult with the applicable Special Servicer and shall
advise such Special Servicer of the Trust's federal income tax reporting
position with respect to the various sources of income that the Trust would
derive under the Proposed Plan. In addition, the Tax Administrator shall
(to the maximum extent reasonably possible and at a reasonable fee, which
fee shall be an expense of the Trust) advise such Special Servicer of the
estimated amount of taxes that the Trust would be required to pay with
respect to each such source of income. After receiving the information
described in the two preceding sentences from the Tax Administrator, such
Special Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property) or (B) manage
and operate such property in a manner that would not result in the
imposition of an REO Tax on the income derived from such property.
Subject to Section 3.17(b), the applicable Special Servicer's decision
as to how each Administered REO Property shall be managed and operated shall be
in accordance with the Servicing Standard. Neither the applicable Special
Servicer nor the Tax Administrator shall be liable to the Certificateholders,
the Trustee, the Trust, the other parties hereto, any beneficiaries hereof or
each other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a) with respect to any Administered REO Property. Nothing in this Section
3.17(a) is intended to prevent the sale of any Administered REO Property
pursuant to the terms and subject to the conditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the
applicable Special Servicer shall manage, conserve, protect and operate such REO
Property for the benefit of the Certificateholders (or, in the case of any REO
Property related to a Serviced Mortgage Loan Group, on behalf of both the
Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), as a collective whole, solely for the purpose of its prompt
disposition and sale in accordance with Section 3.18, in a manner that does not
cause such Administered REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), result in the receipt by any REMIC Pool of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code, in an Adverse REMIC Event with respect to any REMIC Pool or in an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool. Except as
contemplated by Section 3.17(a), the applicable Special Servicer shall not enter
into any lease, contract or other agreement with respect to any Administered REO
Property that causes the Trust to receive, and (unless required to do so under
any lease, contract or agreement to
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which the applicable Special Servicer or the Trust may become a party or
successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other
similar exercise of a creditor's rights or remedies with respect to the related
Serviced Mortgage Loan) shall not, with respect to any Administered REO
Property, cause or allow the Trust to receive, any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the applicable Special Servicer shall have full power and
authority to do any and all things in connection with the administration of any
Administered REO Property, as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from its REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, maintenance and disposition of such REO
Property, including:
(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 may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable Special Servicer's REO
Account with respect to any Administered REO Property are insufficient for the
purposes contemplated by the preceding sentence with respect to such REO
Property, the applicable Master Servicer shall, at the direction of such Special
Servicer, but subject to Section 3.11(h), make a Servicing Advance of such
amounts as are necessary for such purposes unless such Master Servicer or such
Special Servicer determines, in its reasonable judgment, that such advances
would, if made, be Nonrecoverable Servicing Advances; provided, however, that
such Master Servicer may in its sole discretion make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The applicable Special Servicer may, and, if required for the
Administered REO Property to continue to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, shall, contract with any
Independent Contractor for the operation and management of any Administered REO
Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust) shall be reasonable and customary in consideration
of the nature and locality of such REO Property;
(iii) any such contract shall be consistent with Treasury
Regulations Section 1.856-6(e)(6) and shall require, or shall be
administered to require, that the Independent Contractor, in a timely
manner, (A) pay all costs and expenses incurred in connection with the
operation and management of such REO Property, including those listed in
Section 3.17(b) above, and (B) remit all related revenues collected (net of
its fees and such costs and expenses) to such Special Servicer upon
receipt;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve such Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) such 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
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Property, and such Special Servicer shall comply with the Servicing
Standard in maintaining such Independent Contractor.
Each Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any Administered REO
Property are greater than the revenues available from such property, such excess
costs shall be covered by, and be reimbursable as, a Servicing Advance.
(d) Without limiting the generality of the foregoing, the applicable
Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any 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 any REO Property,
other than the repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than 10% of
the construction of such building or other improvement was completed before
default on the related Mortgage Loan become imminent, all within the
meaning of Section 856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i),
(a)(ii) and (a)(iii) and above, Directly Operate, or allow any other
Person, other than an Independent Contractor, to Directly Operate, any REO
Property on any date more than 90 days after its Acquisition Date.
(e) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any REO Property related to a Non-Trust-Serviced Pooled Mortgage
Loan.
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties;
Sale of the Non-Trust- Serviced Pooled Mortgage Loan.
(a) The applicable Master Servicer, the applicable Special Servicer or
the Trustee may sell or purchase, or permit the sale or purchase of, a Pooled
Mortgage Loan or REO Property (or, in the case of any REO Property related to a
Mortgage Loan Group, such REO Property and/or the beneficial interest of the
Trust Fund in such REO Property) only (i) on the terms and subject to the
conditions set forth in this Section 3.18, (ii) as otherwise expressly provided
in or contemplated by Sections 2.03 and 9.01 of this Agreement, (iii) in the
case of a Pooled Mortgage Loan (or REO Property related thereto) with a related
mezzanine loan, in connection with a Mortgage Loan default if and as set forth
in the related intercreditor agreement, (iv) in the case of a Pooled Mortgage
Loan (or REO Property related thereto) included in a Serviced Mortgage Loan
Group, in connection with a Mortgage Loan default if and as set forth in the
related Mortgage Loan Group Intercreditor Agreement, or (v) in the case of a
Non-Trust-Serviced Pooled Mortgage Loan (or REO Property related thereto),
pursuant to a purchase option under the related Mortgage Loan Group
Intercreditor Agreement and/or the related Non-Trust Servicing Agreement.
(b) If any Pooled Mortgage Loan becomes a Specially Designated
Defaulted Pooled Mortgage Loan, then the applicable Special Servicer shall so
notify the Certificate Administrator, the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Holder(s) of the
Controlling Class (and, if the affected Pooled Mortgage Loan is included in a
Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled
Subordinate Loans, the related Non-Pooled Noteholder(s)), in writing. In
addition, the applicable Special Servicer shall determine (in accordance with
the Servicing Standard, taking into account the considerations contemplated by
the
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following paragraph, but without regard to the Purchase Option provided for in
Section 3.18(c) below), and report to the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Holder(s) of the
Controlling Class, the Fair Value of such Pooled Mortgage Loan. The applicable
Special Servicer's determination of the Fair Value of any Specially Designated
Defaulted Pooled Mortgage Loan shall be made as soon as reasonably practicable,
but in no event later than 30 days after the applicable Special Servicer
receives the requisite Appraisal or any other third-party reports that it deems
necessary to make the determination. If at any time the applicable Special
Servicer becomes aware of any circumstances or conditions that have occurred or
arisen with respect to any Specially Designated Defaulted Pooled Mortgage Loan
or the related Mortgaged Property subsequent to, and that would, in the
applicable Special Servicer's reasonable judgment, materially affect, the
applicable Special Servicer's most recent Fair Value determination with respect
to such Specially Designated Defaulted Pooled Mortgage Loan, then the applicable
Special Servicer shall redetermine (in a manner as is permitted above, but
taking into account any such new circumstances or conditions known to the
applicable Special Servicer), and report to the Certificate Administrator, the
Trustee, the Controlling Class Representative and the applicable Master Servicer
(and the Certificate Administrator shall, in turn, report to the Holder(s) of
the Controlling Class), the updated Fair Value of the subject Specially
Designated Defaulted Pooled Mortgage Loan. In addition, if the applicable
Special Servicer has not accepted a bid at the Fair Value of the Mortgage Loan,
as most recently determined by the applicable Special Servicer, prior to the
expiration of 90 days from such determination, and thereafter the applicable
Special Servicer receives a bid at such Fair Value or a request from a holder of
the Purchase Option for an updated determination of the Fair Value of the
Mortgage Loan, the applicable Special Servicer shall redetermine (in the same
manner as provided above, but taking into account any such new circumstances or
conditions known to the applicable Special Servicer), and report to the Trustee,
the Certificate Administrator, the Controlling Class Representative and the
applicable Master Servicer (and the Certificate Administrator shall, in turn,
report to the Holder(s) of the Controlling Class), the updated Fair Value of the
subject Specially Designated Defaulted Pooled Mortgage Loan; provided, however,
that the applicable Special Servicer may rely on the existing third-party
information if it deems such reliance to be reasonable.
In determining the Fair Value of any Specially Designated Defaulted
Pooled Mortgage Loan, the applicable Special Servicer shall take into account,
among other factors, the period and amount of the delinquency on such Mortgage
Loan, the occupancy level and physical condition of the related Mortgaged
Property, the state of the local economy in the area where the related Mortgaged
Property is located, and the time and expense associated with and the expected
recovery from a purchaser's foreclosing on the related Mortgaged Property or
working out such Mortgage Loan. In addition, the applicable Special Servicer
shall refer to all relevant information contained in the Servicing File, shall
take into account the most recent Appraisal obtained or conducted with respect
to the related Mortgaged Property in the preceding 12-month period in accordance
with this Agreement and shall not determine the Fair Value of any Specially
Designated Defaulted Pooled Mortgage Loan without such an Appraisal; provided
that the applicable Special Servicer shall take account of any change in the
circumstances regarding or the condition of the related Mortgaged Property
actually known to the applicable Special Servicer that has occurred or arisen
subsequent to, and that would materially affect the value of the related
Mortgaged Property reflected in, such Appraisal. Furthermore, the applicable
Special Servicer may consider available objective third-party information
obtained from generally available sources, as well as information obtained from
vendors providing real estate services to the applicable Special Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related Mortgaged
Property is located. The applicable Special Servicer may, to the extent it is
reasonable to do so in accordance with the Servicing Standard, conclusively rely
on any opinions or reports of qualified Independent third parties expert in real
estate or commercial mortgage loan matters with at least 5 years experience in
valuing or investing in loans similar to the subject Specially Designated
Defaulted Mortgage Loan in making such determination. The reasonable costs of
all appraisals, inspection reports and broker opinions of value, incurred by the
applicable Special Servicer pursuant to this Section 3.18(b) shall constitute,
and be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information made by the
applicable Special Servicer in order to allow the applicable Special Servicer to
perform its duties pursuant to this Section 3.18(b).
Notwithstanding the foregoing, no Fair Value shall be determined under
this Agreement with respect to a Non-Trust-Serviced Pooled Mortgage Loan.
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(c) The Majority Controlling Class Certificateholder(s) or any
assignee thereof may, at its or their option, purchase from the Trust any
Specially Designated Defaulted Pooled Mortgage Loan (such option, the "Purchase
Option"), at a cash price (the "Option Price") equal to the Fair Value of such
Mortgage Loan (as most recently determined by the applicable Special Servicer
and reported to the Trustee, the Certificate Administrator, the Controlling
Class Representative and the applicable Master Servicer as provided in Section
3.18(b) above) or, if no such Fair Value has yet been established as provided in
Section 3.18(b) above or if the applicable Special Servicer is in the process of
redetermining such Fair Value because of a change in circumstances, equal to the
Purchase Price; provided that:
(i) the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan will remain in effect only for the period
(the "Option Period") that commences on the date that such Mortgage Loan
first becomes a Specially Designated Defaulted Pooled Mortgage Loan and
ends on the earlier of (A) the date on which such Mortgage Loan becomes a
Corrected Mortgage Loan or otherwise ceases to be a Specially Designated
Defaulted Pooled Mortgage Loan and (B) the date on which a Liquidation
Event occurs with respect to such Pooled Mortgage Loan or the related
Mortgaged Property becomes an REO Property;
(ii) the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan shall be assignable by the Majority
Controlling Class Certificateholder(s) during the Option Period to any
third party (but in any event any assignment of the Purchase Option to the
related Borrower under such Specially Designated Defaulted Pooled Mortgage
Loan or any Affiliate of such Borrower shall constitute a violation of this
Section 3.18), provided that the parties hereto are notified in writing of
the assignment;
(iii) if the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan is not exercised by the Majority
Controlling Class Certificateholder(s) or any assignee thereof within 60
days after the Fair Value of such Mortgage Loan has initially been
established as provided in Section 3.18(b) above, then the Majority
Controlling Class Certificateholder(s) shall be deemed to have assigned
such Purchase Option, for a 30-day period only, to the applicable Special
Servicer;
(iv) during the 30-day period following the assignment to it of
the Purchase Option with respect to any Specially Designated Defaulted
Pooled Mortgage Loan, the applicable Special Servicer shall be entitled to
exercise such Purchase Option or to assign such Purchase Option to any
third party (but in any event any assignment of the Purchase Option to the
related Borrower under such Specially Designated Defaulted Pooled Mortgage
Loan or any Affiliate of such Borrower shall constitute a violation of this
Section 3.18), provided that the other parties hereto are notified in
writing of the assignment;
(v) if the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan is not exercised by the
applicable Special Servicer or its assignee within the 30-day period
following the assignment of such Purchase Option to the applicable Special
Servicer as contemplated by clause (iii) above, then such Purchase Option
will automatically revert to the Majority Controlling Class
Certificateholder(s); and
(vi) prior to any exercise of the Purchase Option with respect to
any Specially Designated Defaulted Pooled Mortgage Loan by the applicable
Special Servicer or any Affiliate thereof, subject to the following
paragraph, the Trustee shall confirm and report to the applicable Master
Servicer, the Certificate Administrator and the applicable Special Servicer
that the applicable Special Servicer's determination of the Fair Value of
such Mortgage Loan is consistent with or greater than what the Trustee
considers to be the Fair Value of such Mortgage Loan; provided that the
applicable Special Servicer may, at its own expense, revise any such Fair
Value determination that is rejected by the Trustee, it being understood
and agreed that such revised Fair Value determination will likewise be
subject to confirmation in accordance with this clause (vi).
Notwithstanding anything contained in clause (vi) of the preceding
paragraph to the contrary, if the Trustee is required to confirm or reject the
applicable Special Servicer's Fair Value determination as contemplated by such
clause (vi), the Trustee may (at its option and at the expense of the Trust
Fund) designate an Independent third party
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expert in real estate or commercial mortgage loan matters with at least 5 years'
experience in valuing or investing in loans similar to the subject Specially
Designated Defaulted Pooled Mortgage Loan, that has been selected with
reasonable care by the Trustee to confirm that the applicable Special Servicer's
Fair Value determination as contemplated by such clause (vi) is consistent with
or greater than what the Independent third party considers to be the Fair Value
of such Mortgage Loan. In the event that the Trustee designates such a third
party to make such determination, the Trustee shall be entitled to rely upon
such third party's determination. The reasonable costs of all appraisals,
inspection reports and broker opinions of value, incurred by the Trustee or any
such third party pursuant to this paragraph or clause (vi) of the preceding
paragraph shall be advanced by the applicable Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances; provided that, the
Trustee shall not so engage a third party expert whose fees exceed a
commercially reasonable sum as determined by the Trustee. The applicable Special
Servicer shall provide the Trustee with all information that the applicable
Special Servicer utilized in determining the Fair Value that is being confirmed.
Any party entitled to do so may exercise the Purchase Option with
respect to any Specially Designated Defaulted Pooled Mortgage Loan by providing
to the Certificate Administrator, the Trustee, the applicable Master Servicer
and the applicable Special Servicer:
(i) written notice of its intention to purchase such Mortgage
Loan at the Option Price; and
(ii) if such party is the assignee of the applicable Special
Servicer or the Majority Controlling Class Certificateholder(s), evidence
of its right to exercise such Purchase Option.
The actual purchase of such Specially Designated Defaulted Pooled Mortgage Loan
shall occur (by delivery of cash in the amount of the applicable Option Price to
the applicable Special Servicer for deposit in the applicable Master Servicer's
Collection Account) no later than ten days after the later of (i) such exercise
of the Purchase Option with respect to such Mortgage Loan and (ii) if
applicable, the confirmation of the applicable Special Servicer's Fair Value
determination with respect to such Mortgage Loan in accordance with clause (vi)
of the first paragraph of this Section 3.18(c) and/or in accordance with the
second paragraph of this Section 3.18(c). If any Person to which the Purchase
Option has been assigned as provided above exercises the Purchase Option but
fails to consummate the actual purchase of the applicable Specially Designated
Defaulted Pooled Mortgage Loan in accordance with the preceding sentence, then
the Purchase Option shall automatically thereupon be reinstated, revert to and
be exercisable by the Controlling Class Representative or the applicable Special
Servicer, as applicable.
Notwithstanding the Purchase Option provided for in this Section
3.18(c), the applicable Special Servicer shall proceed in respect of any
Specially Designated Defaulted Pooled Mortgage Loan in accordance with Section
3.09 and/or Section 3.20, without regard to such Purchase Option.
In no event shall there be a Purchase Option hereunder with respect to
a Non-Trust-Serviced Pooled Mortgage Loan. However, in the event of the exercise
of a similar option under the related Non-Trust Servicing Agreement and/or
pursuant to the related Mortgage Loan Group Intercreditor Agreement, the Trustee
shall sell such Non-Trust-Serviced Pooled Mortgage Loan in accordance with such
agreement.
(d) The applicable Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to solicit cash bids for each
Administered REO Property in such manner as will be reasonably likely to realize
a fair price (determined pursuant to Section 3.18(e) below) for any Administered
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period provided for by Section
3.16(a)). The applicable Special Servicer shall accept the first (and, if
multiple cash bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such Administered REO Property. If the applicable
Special Servicer reasonably believes that it will be unable to realize a fair
price (determined pursuant to Section 3.18(e) below) with respect to any
Administered REO Property within the time constraints imposed by Section
3.16(a), then the applicable Special Servicer shall, consistent with the
Servicing Standard, dispose of such REO Property upon such terms and conditions
as it shall deem necessary and desirable to maximize the recovery thereon under
the circumstances.
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The applicable Special Servicer shall give the Certificate
Administrator, the Trustee, the applicable Master Servicer, the Controlling
Class Representative and, if the related Administered REO Property relates to a
Serviced Mortgage Loan Group, the related Serviced Mortgage Loan Group
Controlling Party not less than five (5) Business Days' prior written notice of
its intention to sell any Administered REO Property pursuant to this Section
3.18(d). No Pooled Mortgage Loan Seller, Certificateholder or any Affiliate of
any such Person shall be obligated to submit a bid to purchase any Administered
REO Property, and notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates may bid for or
purchase any Administered REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Administered
REO Property for purposes of Section 3.18(d), shall be determined by the
applicable Special Servicer or, if such cash bid is from the applicable Special
Servicer or any Affiliate of such Special Servicer, by the Trustee. In
determining whether any bid received from a Special Servicer or an Affiliate of
such Special Servicer represents a fair price for any REO Property, the Trustee
shall be supplied with and shall be entitled to rely on the most recent
Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period (or, in the absence of any such
Appraisal or if there has been a material change at the subject property since
any such Appraisal, on a new Appraisal to be obtained by the applicable Special
Servicer, the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance). The appraiser conducting any such new Appraisal shall be a
Qualified Appraiser that is (i) selected by the applicable Special Servicer if
neither the applicable Special Servicer nor any Affiliate thereof is bidding
with respect to the subject Administered REO Property and (ii) selected by the
Trustee if either the applicable Special Servicer or any Affiliate thereof is so
bidding. Where any Pooled Mortgage Loan Seller, any Certificateholder or any
Affiliate of any such Person is among those bidding with respect to any
Administered REO Property, the applicable Special Servicer shall require that
all bids be submitted to it (or, if the applicable Special Servicer or an
Affiliate thereof is bidding, be submitted to the Trustee) in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the bid
amount. In determining whether any bid from a Person other than any Pooled
Mortgage Loan Seller, any Certificateholder or any Affiliate of any such Person
constitutes a fair price for any Administered REO Property, the applicable
Special Servicer shall take into account the results of any Appraisal or updated
Appraisal that it or the applicable Master Servicer may have obtained in
accordance with this Agreement within the prior twelve (12) months, as well as,
among other factors, the occupancy level and physical condition of such REO
Property, the state of the then current local economy and commercial real estate
market where such REO Property is located and the obligation to dispose of such
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period specified in Section
3.16(a)). The Purchase Price for any Administered REO Property (which, in
connection with an Administered REO Property related to a Serviced Mortgage Loan
Group, shall be construed and calculated as if all the Mortgage Loans in such
Mortgage Loan Group together constitute a single "Pooled Mortgage Loan"
thereunder) shall in all cases be deemed a fair price. Notwithstanding the other
provisions of this Section 3.18, no cash bid from the applicable Special
Servicer or any Affiliate thereof shall constitute a fair price for any
Administered REO Property unless such bid is the highest cash bid received and
at least two Independent bids (not including the bid of the applicable Special
Servicer or any Affiliate) have been received. In the event the bid of the
applicable Special Servicer or any Affiliate thereof is the only bid received or
is the higher of only two bids received, then additional bids shall be
solicited. If an additional bid or bids, as the case may be, are received for
any Administered REO Property and the original bid of the applicable Special
Servicer or any Affiliate thereof is the highest of all bids received, then the
bid of the applicable Special Servicer or such Affiliate shall be accepted,
provided that the Trustee has otherwise determined, as provided above in this
Section 3.18(e), that such bid constitutes a fair price for the subject
Administered REO Property. Any bid by the applicable Special Servicer for any
Administered REO Property shall be unconditional; and, if accepted, the subject
Administered REO Property shall be transferred to the applicable Special
Servicer without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a real
property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the applicable
Special Servicer shall act on behalf of the Trustee in negotiating with
Independent third parties in connection with the sale of any Administered REO
Property and taking any other action necessary or appropriate in connection with
the sale of any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property, and the collection of all amounts payable in
connection therewith. In connection with the sale of any Administered REO
Property, the applicable Special Servicer may charge
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prospective bidders, and may retain, fees that approximate the applicable
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into a Collection Account; provided, that if the applicable Special
Servicer was previously reimbursed for such costs from the Collection Account,
then the applicable Special Servicer must deposit such amounts into a Collection
Account. Any sale of a Specially Designated Defaulted Pooled Mortgage Loan or
any Administered REO Property shall be final and without recourse to the Trustee
or the Trust, and if such sale is consummated in accordance with the terms of
this Agreement, neither the applicable Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by the applicable Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Pooled Mortgage
Loan or Administered REO Property shall be for cash only.
(h) The applicable Master Servicer shall act on behalf of the Trustee
in coordinating with independent third parties seeking to purchase a
Non-Trust-Serviced Pooled Mortgage Loan by, and taking any other action
necessary or appropriate in connection with the sale of a Non-Trust-Serviced
Pooled Mortgage Loan to, any purchase option holder with respect thereto
pursuant to the related Non-Trust Servicing Agreement and/or the related
Mortgage Loan Group Intercreditor Agreement, and the collection of all amounts
payable in connection therewith. Any sale of a Non-Trust-Serviced Pooled
Mortgage Loan pursuant to the related Non-Trust Servicing Agreement and/or the
related Mortgage Loan Group Intercreditor Agreement shall be final and without
recourse to the Trustee or the Trust, and if such sale is consummated in
accordance with the terms of the related Non-Trust Servicing Agreement and/or
the related Mortgage Loan Group Intercreditor Agreement, none of the applicable
Master Servicer, the applicable Special Servicer or the Trustee shall have any
liability to any Certificateholder with respect to the purchase price for such
Non-Trust-Serviced Pooled Mortgage Loan accepted on behalf of the Trust.
(i) If any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property is sold under this Section 3.18, or a
Non-Trust-Serviced Pooled Mortgage Loan is sold in accordance with this
Agreement and pursuant to the related Mortgage Loan Group Intercreditor
Agreement or the related Non-Trust Servicing Agreement, then the purchase price
shall be deposited into the applicable Master Servicer's Collection Account, and
the Trustee, upon receipt of written notice from the applicable Master Servicer
to the effect that such deposit has been made (based upon, in the case of a
Specially Designated Defaulted Pooled Mortgage Loan or Administered REO
Property, notification by the applicable Special Servicer to such Master
Servicer of the amount of the purchase price), shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest ownership of such
Mortgage Loan or REO Property in the Person who purchased such Mortgage Loan or
REO Property.
(j) If the applicable Pooled Mortgage Loan is part of a Serviced
Mortgage Loan Group that includes one or more Non-Pooled Pari Passu Companion
Loans, then the applicable Purchase Option Holder that exercises the Purchase
Option must also purchase each and every related Non-Pooled Pari Passu Companion
Loan for a cash price equal to an amount that bears the same proportion to the
outstanding principal balance of such Non-Pooled Mortgage Loan as the Fair Value
of the applicable Pooled Mortgage Loan bears to the outstanding principal
balance of such Pooled Mortgage Loan.
(k) Any purchaser of a Pooled Mortgage Loan that is included in a
Serviced Mortgage Loan Group, whether pursuant to this Section 3.18 or pursuant
to Section 2.03 or 9.01, will be subject to the related Mortgage Loan Group
Intercreditor Agreement, including any requirements thereof governing who may be
a holder of such Pooled Mortgage Loan. The applicable Special Servicer will
require, in connection with such a sale of the related Pooled Mortgage Loan,
that the purchaser assume in writing all of the rights and obligations of the
holder of such Pooled Mortgage Loan under the related Mortgage Loan Group
Intercreditor Agreement.
(l) The Purchase Option for any Specially Designated Defaulted Pooled
Mortgage Loan pursuant to this Section 3.18 shall terminate, and shall not be
exercisable as set forth in subsections (b) and (c) above (or if exercised, but
the purchase of the subject Pooled Mortgage Loan has not yet occurred, shall
terminate and be of no further force or
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effect) if and when any one or more of the following events has occurred: (i)
the applicable Special Servicer has accepted a Fair Value bid, (ii) such
Specially Designated Defaulted Pooled Mortgage Loan has become a Corrected
Mortgage Loan or has otherwise ceased to be a Specially Designated Defaulted
Pooled Mortgage Loan, (iii) the related Mortgaged Property has become an REO
Property, (iv) a Final Recovery Determination has been made with respect to such
Specially Designated Defaulted Pooled Mortgage Loan, (v) solely in the case of a
Specially Designated Defaulted Pooled Mortgage Loan that is part of any Serviced
Mortgage Loan Group, the purchase option, if any, granted to the related
Non-Pooled Subordinate Noteholder under the related Mortgage Loan Group
Intercreditor Agreement is exercised or (vi) such Specially Designated Defaulted
Pooled Mortgage Loan has otherwise been removed from the Trust.
SECTION 3.19. Additional Obligations of Master Servicers and Special
Servicer.
(a) Within sixty (60) days (or within such longer period as the
applicable Special Servicer is (as certified thereby to the Trustee in writing)
diligently using reasonable efforts to obtain the Appraisal referred to below)
after the earliest of the date on which any Serviced Pooled Mortgage Loan (i)
becomes a Modified Mortgage Loan following the occurrence of a Servicing
Transfer Event, (ii) becomes an REO Pooled Mortgage Loan, (iii) with respect to
which a receiver or similar official is appointed and continues for 60 days in
such capacity in respect of the related Mortgaged Property, (iv) the related
Borrower becomes the subject of bankruptcy, insolvency or similar proceedings
or, if such proceedings are involuntary, such proceedings remain undismissed for
sixty (60) days, or (v) any Monthly Payment becomes 60 days or more delinquent
and such event constitutes a Servicing Transfer Event (each such event, an
"Appraisal Trigger Event" and each such Serviced Pooled Mortgage Loan and any
related REO Pooled Mortgage Loan that is the subject of an Appraisal Trigger
Event, until it ceases to be such in accordance with the following paragraph, a
"Required Appraisal Loan"), the applicable Special Servicer shall obtain an
Appraisal of the related Mortgaged Property, unless an Appraisal thereof had
previously been received (or, if applicable, conducted) within the prior twelve
(12) months and the applicable Special Servicer has no knowledge of changed
circumstances that in the applicable Special Servicer's reasonable judgment
would materially affect the value of the Mortgaged Property. If such Appraisal
is obtained from a Qualified Appraiser, the cost thereof shall be covered by,
and be reimbursable as, a Servicing Advance, such Advance to be made at the
direction of the applicable Special Servicer when the Appraisal is received by
the applicable Special Servicer. Promptly following the receipt of, and based
upon, such Appraisal, the applicable Special Servicer, in consultation with the
Controlling Class Representative (other than in connection with a Serviced
Mortgage Loan Group that includes one or more Non-Pooled Subordinate Loans) or
the related Serviced Loan Group Controlling Party (in connection with a Serviced
Mortgage Loan Group that includes one or more Non-Pooled Subordinate Loans),
shall determine and report to the Certificate Administrator, the Trustee and the
applicable Master Servicer the then applicable Appraisal Reduction Amount, if
any, with respect to the subject Required Appraisal Loan. For purposes of this
Section 3.19(a), an Appraisal may, in the case of any Serviced Pooled Mortgage
Loan with an outstanding principal balance of less than $2,000,000 only, consist
solely of an internal valuation performed by the applicable Special Servicer. In
connection with a Mortgaged Property related to any Serviced Mortgage Loan
Group, the applicable Special Servicer shall also determine and report to the
Trustee, the applicable Master Servicer, the Controlling Class Representative
and the applicable Serviced Non-Pooled Mortgage Loan Noteholder(s) the Appraisal
Reduction Amount, if any, with respect to the entire such Serviced Mortgage Loan
Group (calculated, for purposes of this sentence, as if it were a single
Serviced Pooled Mortgage Loan).
A Serviced Pooled Mortgage Loan shall cease to be a Required Appraisal
Loan if and when, following the occurrence of the most recent Appraisal Trigger
Event, any and all Servicing Transfer Events with respect to such Mortgage Loan
have ceased to exist and no other Appraisal Trigger Event has occurred with
respect thereto during the preceding ninety (90) days.
For so long as any Serviced Pooled Mortgage Loan or related REO Pooled
Mortgage Loan remains a Required Appraisal Loan, the applicable Special Servicer
shall, within 30 days of each anniversary of such Mortgage Loan's having become
a Required Appraisal Loan, obtain (or, if such Required Appraisal Loan has a
Stated Principal Balance of $2,000,000 or less, at the applicable Special
Servicer's option, conduct) an update of the prior Appraisal. If such update is
obtained from a Qualified Appraiser, the cost thereof shall be covered by, and
be reimbursable as, a Servicing Advance, such Advance to be made at the
direction of the applicable Special Servicer when the Appraisal is
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received by the applicable Special Servicer. Promptly following the receipt of,
and based upon, such update, the applicable Special Servicer shall redetermine,
in consultation with the Controlling Class Representative (other than in
connection with a Serviced Mortgage Loan Group that includes one or more
Non-Pooled Subordinate Loans) or the related Serviced Mortgage Loan Group
Controlling Party (in connection with a Serviced Mortgage Loan Group that
includes one or more Non-Pooled Subordinate Loans), and report to the
Certificate Administrator, the Trustee and the applicable Master Servicer the
then applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan. In connection with a Mortgaged Property related to any
Serviced Mortgage Loan Group, promptly following the receipt of, and based upon,
such update, the applicable Special Servicer shall also redetermine, and report
to the Trustee, the applicable Master Servicer, the Controlling Class
Representative and related Serviced Non-Pooled Mortgage Loan Noteholder(s) the
Appraisal Reduction Amount, if any, with respect to the entire such Serviced
Mortgage Loan Group (calculated, for purposes of this sentence, as if it were a
single Serviced Pooled Mortgage Loan).
The Controlling Class Representative shall have the right at any time,
but not more frequently that once in any six month period, to require that the
applicable Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards, at the expense of the Controlling
Class Certificateholders. With respect to a Mortgaged Property related to a
Serviced Mortgage Loan Group (other than the Tuscany Plaza Loan Group) that
includes one or more Non-Pooled Subordinate Loans, the related Non-Pooled
Subordinate Noteholder shall additionally have the right at any time when such
Non-Pooled Subordinate Noteholder constitutes the related Serviced Mortgage Loan
Group Controlling Party, and not more frequently than once in any six month
period when such Non-Pooled Subordinate Noteholder constitutes the related
Serviced Mortgage Loan Group Controlling Party, to require that the applicable
Special Servicer obtain a new Appraisal of such Mortgaged Property in accordance
with MAI standards, at the expense of such Non-Pooled Subordinate Noteholder. In
either case, upon receipt of any such Appraisal, the applicable Special Servicer
shall deliver a copy thereof to the Trustee, the applicable Master Servicer, the
Controlling Class Representative and, in the case of a Mortgaged Property
securing a Serviced Mortgage Loan Group (other than the Tuscany Plaza Loan
Group) that includes one or more Non-Pooled Subordinate Loans, the related
Non-Pooled Subordinate Noteholder(s). Promptly following the receipt of, and
based upon, such Appraisal, the applicable Special Servicer shall redetermine
and report to the Trustee, the Master Servicer and the Controlling Class
Representative the then applicable Appraisal Reduction Amount, if any, with
respect to the subject Required Appraisal Mortgage Loan.
With respect to the Tuscany Plaza Mortgaged Property, upon allocation
of an Appraisal Reduction Amount that would result in a Tuscany Plaza Change of
Control Event, the related Non-Pooled Subordinate Noteholder may request that
the applicable Special Servicer appoint a Qualified Appraiser to prepare a
second Appraisal of the Tuscany Plaza Mortgaged Property at such Non-Pooled
Subordinate Noteholder's expense. If the appraised value of the Tuscany Plaza
Mortgaged Property determined by the second Appraisal is more than 10% higher
than the appraised value in the first Appraisal, then the second Appraisal shall
be used to determine the Appraisal Reduction Amount; otherwise, the first
Appraisal shall be used. If the second Appraisal is used, then the applicable
Special Servicer shall report to the Trustee, the Master Servicer and the
Controlling Class Representative the then applicable Appraisal Reduction Amount,
if any, with respect to the Tuscany Plaza Mortgage Loan. The Tuscany Plaza
Change of Control Event shall remain in effect until the applicable Special
Servicer determines to change the Appraisal Reduction Amount as a result of any
Appraisal requested by such Non-Pooled Subordinate Noteholder.
In the case of a Mortgaged Property related to any Serviced Mortgage
Loan Group that includes one or more Non-Pooled Subordinate Loans, if the
applicable Special Servicer redetermines the related Appraisal Reduction Amount
with respect to a Required Appraisal Mortgage Loan pursuant to the provisions
set forth above, the applicable Special Servicer shall also redetermine and
report to the Trustee, the applicable Master Servicer, the Controlling Class
Representative and the applicable Non-Pooled Subordinate Noteholder(s) the
Appraisal Reduction Amount, if any, with respect to the entire such Serviced
Mortgage Loan Group (calculated, for purposes of this sentence, as if it were a
single Serviced Pooled Mortgage Loan).
(b) Notwithstanding anything to the contrary contained in any other
Section of this Agreement, the applicable Special Servicer shall notify the
applicable Master Servicer whenever a Servicing Advance is required to be made
with respect to any Specially Serviced Mortgage Loan or Administered REO
Property, and, such Master Servicer
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shall (subject to Section 3.11(h)) make such Servicing Advance; provided that
the applicable Special Servicer shall make any Servicing Advance on a Specially
Serviced Mortgage Loan or Administered REO Property that constitutes an
Emergency Advance. Each such notice and request shall be made, in writing, not
less than five (5) Business Days (and, to the extent reasonably practicable, at
least ten (10) Business Days) in advance of the date on which the subject
Servicing Advance is to be made and shall be accompanied by such information and
documentation regarding the subject Servicing Advance as the applicable Master
Servicer may reasonably request; provided, however, that the applicable Special
Servicer shall not be entitled to make such a request more frequently than once
per calendar month (although such request may relate to more than one Servicing
Advance). Each Master Servicer shall have the obligation to make any such
Servicing Advance (other than a Nonrecoverable Servicing Advance) that it is so
requested by the applicable Special Servicer to make (as described above) not
later than the date on which the subject Servicing Advance is to be made, but in
no event shall it be required to make any Servicing Advance on a date that is
earlier than five Business Days following such Master Servicer's receipt of such
request. If the request is timely and properly made, the requesting Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the applicable Master Servicer to make with respect
to any Specially Serviced Mortgage Loan or Administered REO Property (regardless
of whether or not such Master Servicer shall make such Servicing Advance). Each
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the applicable Special Servicer, together with
Advance Interest in accordance with Sections 3.05(a) and 3.11(g), at the same
time, in the same manner and to the same extent as such Master Servicer is
entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), a
Master Servicer shall not be required to reimburse the applicable Special
Servicer for, or to make at the direction of the applicable Special Servicer,
any Servicing Advance if such Master Servicer determines in its reasonable
judgment that such Servicing Advance, although not characterized by the
requesting Special Servicer as a Nonrecoverable Servicing Advance, is in fact a
Nonrecoverable Servicing Advance. Such Master Servicer shall notify the
applicable Special Servicer in writing of such determination and, if applicable,
such Nonrecoverable Servicing Advance shall be reimbursed to the applicable
Special Servicer pursuant to Section 3.05(a).
(c) Each Master Servicer shall deliver to the Certificate
Administrator for deposit in the Distribution Account by 1:00 p.m. (New York
City time) on each Master Servicer Remittance Date, without any right of
reimbursement therefor, a cash payment (a "Compensating Interest Payment") in an
amount equal to the aggregate amount of Prepayment Interest Shortfalls incurred
in connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Serviced Pooled Mortgage Loans as to which
such Master Servicer is the applicable Master Servicer, to the extent such
Prepayment Interest Shortfalls arose from (A) voluntary Principal Prepayments
made by a Borrower on such Serviced Pooled Mortgage Loans that are not Specially
Serviced Mortgage Loans or defaulted Mortgage Loans or (B) to the extent that
such Master Servicer did not apply the proceeds thereof in accordance with the
terms of the related Mortgage Loan Documents, involuntary principal prepayments
made on such Serviced Pooled Mortgage Loans that are not Specially Serviced
Mortgage Loans or defaulted Mortgage Loans.
The rights of the Certificateholders to offsets of any Prepayment
Interest Shortfalls shall not be cumulative from Collection Period to Collection
Period.
(d) With respect to each Serviced Pooled Mortgage Loan that is to be
defeased in accordance with its terms, the applicable Master Servicer shall
execute and deliver to each Rating Agency a certification substantially in the
form attached hereto as Exhibit O and, further, shall, to the extent permitted
by the terms of such Mortgage Loan, require the related Borrower (i) to provide
replacement collateral consisting of U.S. government securities within the
meaning of Section 2(a)(16) of the Investment Company Act in an amount
sufficient to make all scheduled payments under the subject Serviced Pooled
Mortgage Loan (or defeased portion thereof) when due (and assuming, in the case
of an ARD Mortgage Loan, to the extent consistent with the related Mortgage Loan
Documents, that the subject Serviced Pooled Mortgage Loan matures on its
Anticipated Repayment Date), (ii) to deliver a certificate from an independent
certified public accounting firm certifying that the replacement collateral is
sufficient to make such payments, (iii) at the option of the applicable Master
Servicer, to designate a single purpose entity (which may be (but is not
required to be) a subsidiary of the applicable Master Servicer established for
the purpose of assuming all defeased Serviced Mortgage Loans) to
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assume the subject Serviced Pooled Mortgage Loan (or defeased portion thereof)
and own the defeasance collateral, (iv) to implement such defeasance only after
the second anniversary of the Closing Date, (v) to provide an Opinion of Counsel
that the Trustee has a perfected, first priority security interest in the new
collateral, and (vi) in the case of a partial defeasance of the subject Serviced
Pooled Mortgage Loan, to defease a principal amount equal to at least 125% of
the allocated loan amount for the Mortgaged Property or Properties to be
released; provided that, if (A) the subject Serviced Pooled Mortgage Loan has a
Cut-off Date Principal Balance greater than or equal to $20,000,000 or an
outstanding principal balance greater than or equal to 2% of the aggregate
Stated Principal Balance of the Mortgage Pool or is one of the ten largest
Pooled Mortgage Loans then in the Trust Fund, (B) the terms of the subject
Serviced Pooled Mortgage Loan do not permit the applicable Master Servicer to
impose the foregoing requirements and the applicable Master Servicer does not
satisfy such requirements on its own or (C) the applicable Master Servicer is
unable to execute and deliver the certification attached hereto as Exhibit O in
connection with the subject defeasance, then the applicable Master Servicer
shall so notify the Rating Agencies, the Controlling Class Representative and,
if any Mortgage Loan in a Serviced Mortgage Loan Group is involved, the related
Non-Pooled Mortgage Loan Noteholder(s) and, so long as such a requirement would
not violate applicable law or the Servicing Standard, obtain a written
confirmation from each Rating Agency for the Rated Certificates that such
defeasance will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates rated by such Rating Agency and, in the case of a
defeasance with respect to any Serviced Mortgage Loan Group that includes one or
more Serviced Non-Pooled Pari Passu Companion Loans, also a written confirmation
from each applicable Rating Agency for the related Non-Pooled Pari Passu
Companion Loan Securities that such defeasance will not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such Rating Agency. Subject to the related Mortgage
Loan Documents and applicable law, the applicable Master Servicer shall not
permit a defeasance unless (i) the subject Serviced Mortgage Loan requires the
Borrower to pay (or the Borrower in fact pays) all Rating Agency fees associated
with defeasance (if confirmation of the absence of an Adverse Rating Event is a
specific condition precedent thereto) and all expenses associated with
defeasance or other arrangements for payment of such costs are made at no
expense to the Trust Fund or the applicable Master Servicer (provided, however,
that in no event shall such proposed other arrangements result in any liability
to the Trust Fund including any indemnification of the applicable Master
Servicer or the applicable Special Servicer which may result in legal expenses
to the Trust Fund), and (ii) the Borrower is required to provide all Opinions of
Counsel, including Opinions of Counsel that the defeasance will not cause an
Adverse REMIC Event or an Adverse Grantor Trust Event and that the related
Mortgage Loan Documents are fully enforceable in accordance with their terms
(subject to bankruptcy, insolvency and similar standard exceptions), and any
applicable rating confirmations with respect to the absence of an Adverse Rating
Event.
(e) In the case of the Pooled Mortgage Loan secured by the Mortgaged
Property identified on the Pooled Mortgage Loan Schedule as "Orange Plaza",
subject to applicable law and the Mortgage Loan Documents, the applicable Master
Servicer shall cause the "deposit account" (as defined in the related Mortgage
Loan Documents) to be an Eligible Account.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The applicable Special Servicer (in the case of a Serviced
Mortgage Loan that is a Specially Serviced Mortgage Loan) or the applicable
Master Servicer (in the case of a Performing Serviced Mortgage Loan) may
(consistent with the Servicing Standard) agree to any modification, waiver or
amendment of any term of, extend the maturity of, defer or forgive interest
(including Default Interest and Post-ARD Additional Interest) on and principal
of, defer or forgive late payment charges, Prepayment Premiums and Yield
Maintenance Charges on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is
responsible, subject, however, to Sections 3.08, 3.24, 3.27 and/or 3.28, as
applicable, and, in the case of each Serviced Mortgage Loan in a Serviced
Mortgage Loan Group, to the rights of third parties set forth in the related
Mortgage Loan Group Intercreditor Agreement, and, further to each of the
following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with
respect to Post-ARD Additional Interest and Default Charges), Section 3.08
(with respect to due-on-sale and due-on-encumbrance clauses and
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transfers of interests in Borrowers), Section 3.19(e) (with respect to
defeasances), Section 3.20(e) (with respect to Post-ARD Additional
Interest) and Section 3.20(f) (with respect to various routine matters),
the applicable Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Mortgage Loan, that
would affect the amount or timing of any related payment of principal,
interest or other amount payable under such Mortgage Loan or materially and
adversely affect the security for such Mortgage Loan, unless (solely in the
case of a Performing Serviced Mortgage Loan) such Master Servicer has
obtained the consent of the applicable Special Servicer (it being
understood and agreed that (A) the applicable Master Servicer shall
promptly provide the applicable Special Servicer with notice of any
Borrower request for such modification, waiver or amendment, the applicable
Master Servicer's recommendations and analysis, and with all information
reasonably available to the applicable Master Servicer that the applicable
Special Servicer may reasonably request in order to withhold or grant any
such consent, (B) the applicable Special Servicer shall decide whether to
withhold or grant such consent in accordance with the Servicing Standard
(and subject to Sections 3.24, 3.27 and/or 3.28, as applicable), (C) except
with respect to any Nationwide Pooled Mortgage Loan, any PCF Pooled
Mortgage Loan or any PCFII Pooled Mortgage Loan, if any such consent has
not been expressly denied within ten Business Days of the Special
Servicer's receipt from the applicable Master Servicer of such Master
Servicer's recommendations and analysis and all information reasonably
requested thereby and reasonably available to the applicable Master
Servicer in order to make an informed decision, such consent shall be
deemed to have been granted and (D) solely with respect to any Nationwide
Pooled Mortgage Loan, any PCF Pooled Mortgage Loan or any PCFII Pooled
Mortgage Loan, any such consent shall be deemed to have been granted if
such consent has not been expressly denied either (x) within ten Business
Days of the applicable Special Servicer's initial receipt of the applicable
Master Servicer's recommendations and analysis, if such Special Servicer
has not requested additional information as described above on or before
the date that is four Business Days following such Special Servicer's
receipt of the applicable Master Servicer's recommendations and analysis,
or (y) within six Business Days following such Special Servicer's receipt
of the additional information requested by such Special Servicer as
described above, if such Special Servicer has requested such additional
information on or before the date that is four Business Days following such
Special Servicer's initial receipt of the applicable Master Servicer's
recommendations and analysis);
(ii) other than as provided in Sections 3.02, 3.08, 3.20(e) and
3.20(f), the applicable Special Servicer shall not agree to (or, in the
case of a Performing Serviced Mortgage Loan, consent to the applicable
Master Servicer's agreeing to) any modification, waiver or amendment of any
term of, or take (or, in the case of a Performing Serviced Mortgage Loan,
consent to the applicable Master Servicer's taking) any of the other acts
referenced in this Section 3.20(a) with respect to, any Serviced Mortgage
Loan that would affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder or, in the
reasonable judgment of the applicable Special Servicer, would materially
impair the security for such Mortgage Loan, unless a material default on
such Mortgage Loan has occurred or, in the reasonable judgment of the
applicable Special Servicer, a default in respect of payment on such
Mortgage Loan is reasonably foreseeable, and such modification, waiver,
amendment or other action is reasonably likely to produce an equal or a
greater recovery to Certificateholders (and, in the case of a Serviced
Mortgage Loan Group, the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), as a collective whole, on a net present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders and, in the case of a Serviced Mortgage Loan Group,
the relevant Serviced Non-Pooled Mortgage Loan Noteholder(s) to be done at
a rate determined by the Special Servicer but in no event less than the
related Net Mortgage Rate (or, in the case of a Serviced Mortgage Loan
Group, in no event less than the weighted average of the Net Mortgage Rates
for the Mortgage Loans in such Mortgage Loan Group)), than would
liquidation; provided that (A) any modification, extension, waiver or
amendment of the payment terms of the related Serviced Mortgage Loan Group
shall be structured in a manner so as to be consistent with the allocation
and payment priorities set forth in the related Mortgage Loan Documents,
including the related Mortgage Loan Group Intercreditor Agreement, it being
the intention that neither the Trust as holder of the related Pooled
Mortgage Loan nor any Serviced Non-Pooled Mortgage Loan Noteholder shall
gain a priority over any other with respect to any payment, which priority
is not, as of the date of the related
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Mortgage Loan Intercreditor Agreement, reflected in the related Mortgage
Loan Documents, including the related Mortgage Loan Group Intercreditor
Agreement; and (B) to the extent consistent with the Servicing Standard
(taking into account the extent to which the related Serviced Non-Pooled
Subordinate Loan, if any, is junior to a Serviced Pooled Mortgage Loan),
(I) no waiver, reduction or deferral of any particular amounts due on the
related Serviced Pooled Mortgage Loan shall be effected prior to the
waiver, reduction or deferral of the entire corresponding item in respect
of the related Serviced Non-Pooled Subordinate Loan, (II) no reduction of
the Mortgage Rate (exclusive, if applicable, of any portion thereof that
represents a Post-ARD Additional Interest Rate) of any such Serviced Pooled
Mortgage Loan shall be effected prior to the reduction of the Mortgage Rate
(exclusive, if applicable, of any portion thereof that represents a
Post-ARD Additional Interest Rate) of the related Serviced Non-Pooled
Subordinate Loans, and (III) no reduction of any Post-ARD Additional
Interest Rate applicable to any such Serviced Pooled Mortgage Loan shall be
effected prior to the reduction of any Post-ARD Additional Interest Rate
applicable to the related Serviced Non-Pooled Subordinate Loan;
(iii) the applicable Special Servicer shall not extend (or, in
the case of a Performing Serviced Mortgage Loan, consent to the applicable
Master Servicer's extending) the date on which any Balloon Payment is
scheduled to be due on any Serviced Mortgage Loan to a date beyond the
earliest of (A) five years prior to the Rated Final Distribution Date, (B)
if such Serviced Mortgage Loan is secured by a Mortgage solely or primarily
on the related Borrower's leasehold interest in the related Mortgaged
Property, 20 years (or, to the extent consistent with the Servicing
Standard, giving due consideration to the remaining term of the Ground
Lease, ten years) prior to the end of the then current term of the related
Ground Lease (plus any unilateral options to extend), and (C) if such
Serviced Mortgage Loan is covered by an Environmental Insurance Policy, for
more than five years later than such Serviced Mortgage Loan's Stated
Maturity Date, unless either (I) the applicable Special Servicer shall have
first determined in its reasonable judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that the
applicable Special Servicer deems necessary and prudent) conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments, and at the expense of the Borrower, that there are no
circumstances or conditions present at the related Mortgaged Property for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations or (II) the Borrower obtains (at its expense) an extension
of such policy on the same terms and conditions for a period ending not
earlier than five years following the extended maturity date of such
Serviced Mortgage Loan;
(iv) neither the applicable Master Servicer nor the applicable
Special Servicer shall make or permit any modification, waiver or amendment
of any term of, or take any of the other acts referenced in this Section
3.20(a) with respect to, any Serviced Mortgage Loan that would result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to any Grantor Trust Pool (the Master Servicers
and the applicable Special Servicer shall not be liable for decisions made
under this subsection which were made in good faith and each of them may
rely on Opinions of Counsel in making such decisions);
(v) subject to applicable law, the related Mortgage Loan
Documents and the Servicing Standard, neither the applicable Master
Servicer nor the applicable Special Servicer shall permit any modification,
waiver or amendment of any term of any Performing Serviced Mortgage Loan
unless all related fees and expenses are paid by the Borrower;
(vi) the applicable Special Servicer shall not permit (or, in the
case of a Performing Serviced Mortgage Loan, consent to the applicable
Master Servicer's permitting) any Borrower to add or substitute any real
estate collateral for its Serviced Mortgage Loan unless the applicable
Special Servicer shall have first (A) determined in its reasonable
judgment, based upon a Phase I Environmental Assessment (and any additional
environmental testing that the applicable Special Servicer deems necessary
and prudent) conducted by an Independent Person who regularly conducts
Phase I Environmental Assessments, at the expense of the related Borrower,
that such additional or substitute collateral is in compliance with
applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring,
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containment, clean-up or remediation would be required under any then
applicable environmental laws or regulations and (B) received, at the
expense of the related Borrower, written confirmation from each Rating
Agency for the Rated Certificates that such addition or substitution of
collateral will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and, in the case of
an addition or substitution of collateral with respect to any Serviced
Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari
Passu Companion Loans, also a written confirmation from each applicable
Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities that such addition or substitution of collateral will not result
in an Adverse Rating Event with respect to any class of such Non-Pooled
Pari Passu Companion Loan Securities rated by such Rating Agency; and
(vii) the applicable Special Servicer shall not release (or, in
the case of a Performing Serviced Mortgage Loan, consent to the applicable
Master Servicer's releasing), including in connection with a substitution
contemplated by clause (vi) above, any real property collateral securing an
outstanding Serviced Mortgage Loan, except as provided in Section 3.09(d),
except as specifically required under the related Mortgage Loan Documents
or except where a Mortgage Loan (or, in the case of a Cross-Collateralized
Group, where such entire Cross-Collateralized Group) is satisfied, or
except in the case of a release where (A) the Rating Agencies have been
notified in writing, (B) either (1) the use of the collateral to be
released will not, in the reasonable judgment of the applicable Special
Servicer, materially and adversely affect the net operating income being
generated by or the use of the related Mortgaged Property, or (2) there is
a corresponding principal pay down of such Mortgage Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute real estate collateral with an appraised value at least equal to
that of the collateral to be released, is delivered), (C) the loan-to-value
ratio of such Mortgage Loan after such release will be, in the reasonable
judgment of the applicable Special Servicer, no greater than that existing
prior to such release and (D) if the collateral to be released has an
appraised value in excess of $3,000,000, either (i) other than in the case
of a release of collateral with respect to a Serviced Mortgage Loan Group
that includes one or more Serviced Non-Pooled Pari Passu Companion Loans,
such release would not, in and of itself, result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in writing to
the Trustee by each Rating Agency, or (ii) in the case of a release of
collateral with respect to a Serviced Mortgage Loan Group that includes one
or more Serviced Non-Pooled Pari Passu Companion Loans, such release would
not, in and of itself, result in an Adverse Rating Event with respect to
any Class of Rated Certificates and also would not, in and of itself,
result in an Adverse Rating Event with respect to any class of related
Non-Pooled Pari Passu Companion Loan Securities, in each case as confirmed
in writing to the Trustee by each applicable Rating Agency;
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Serviced Mortgage Loan that either occurs automatically, or results from the
exercise of a unilateral option within the meaning of Treasury Regulations
Section 1.1001-3(c)(2)(iii) by the related Borrower, in any event under the
terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a
Replacement Pooled Mortgage Loan, on the related date of substitution); and
provided, further, that, notwithstanding clauses (i) through (vii) above,
neither the applicable Master Servicer nor the applicable Special Servicer shall
be required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Borrower under a Serviced Mortgage Loan if, in its
reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar.
(b) If any payment of interest on a Serviced Pooled Mortgage Loan is
deferred pursuant to Section 3.20(a), then such payment of interest shall not,
for purposes of calculating monthly distributions and reporting information to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Pooled Mortgage Loan, notwithstanding that the terms of
such Pooled Mortgage Loan so permit or that such interest may actually be
capitalized; provided, however, that this sentence shall not limit the rights of
the applicable Master Servicer or the applicable Special Servicer on behalf of
the Trust to enforce any obligations of the related Borrower under such Pooled
Mortgage Loan.
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(c) Each of the applicable Master Servicer and the applicable Special
Servicer may, as a condition to its granting any request by a Borrower under a
Serviced Mortgage Loan for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within such Master Servicer's or
such Special Servicer's, as the case may be, discretion pursuant to the terms of
the related Mortgage Loan Documents and is permitted by the terms of this
Agreement, require that such Borrower pay to it a reasonable or customary fee
for the additional services performed in connection with such request, together
with any related costs and expenses incurred by it; provided that the charging
of such fees would not otherwise constitute a "significant modification" of the
subject Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b). All
such fees collected by the applicable Master Servicer and/or the applicable
Special Servicer with respect to any Serviced Mortgage Loan shall be allocable
between such parties, as Additional Master Servicing Compensation and Additional
Special Servicing Compensation, respectively, as provided in Section 3.11.
(d) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Serviced Mortgage Loans pursuant
to this Section 3.20 (other than waivers of Default Charges for which the
consent of the applicable Special Servicer is required under Section 3.02), and
all material consents, shall be in writing. Each of the applicable Special
Servicer and the applicable Master Servicer shall notify the other such party,
each Rating Agency, the Certificate Administrator, the Trustee, the Controlling
Class Representative and, if the Serviced Mortgage Loan is included in a
Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage Loan
Noteholder(s), in writing, of any material modification, waiver, amendment or
other action entered into or taken thereby in respect of any Serviced Mortgage
Loan pursuant to this Section 3.20 (other than waivers of Default Charges for
which the consent of the applicable Special Servicer is required under Section
3.02) and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party and, if the Serviced Mortgage Loan is included in a Serviced Mortgage
Loan Group, the applicable Serviced Non-Pooled Mortgage Loan Noteholders), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action agreed to or taken by it, promptly (and in any event
within ten Business Days) following the execution thereof. In addition,
following the execution of any modification, waiver or amendment agreed to by
the applicable Special Servicer or the applicable Master Servicer, as
appropriate, pursuant to Section 3.20(a) above, the applicable Special Servicer
or the applicable Master Servicer, as applicable, shall deliver to the other
such party, the Certificate Administrator, the Trustee, the Rating Agencies and,
if affected, each applicable Serviced Non-Pooled Mortgage Loan Noteholder an
Officer's Certificate certifying that all of the requirements of Section 3.20(a)
have been met and, in the case of the applicable Special Servicer, setting forth
in reasonable detail the basis of the determination made by it pursuant to
Section 3.20(a)(ii); provided that, if such modification, waiver or amendment
involves an extension of the maturity of any Serviced Mortgage Loan, such
Officer's Certificate shall be so delivered before the modification, waiver or
amendment is agreed to.
(e) With respect to any Performing Serviced Mortgage Loan that is an
ARD Mortgage Loan after its Anticipated Repayment Date, the applicable Master
Servicer shall be permitted, with the consent of the applicable Special Servicer
(which consent shall be deemed granted if not denied in writing within ten
Business Days after receipt of the applicable Master Servicer's request
therefor), to waive (such waiver to be in writing addressed to the related
Borrower, with a copy to the Trustee) all or any portion of the accrued Post-ARD
Additional Interest in respect of such ARD Mortgage Loan if (i) the related
Borrower has requested the right to prepay such ARD Mortgage Loan in full
together with all payments required by the related Mortgage Loan Documents in
connection with such prepayment except for such accrued Post-ARD Additional
Interest, and (ii) the applicable Master Servicer has determined, in its
reasonable judgment, that waiving such Post-ARD Additional Interest is in
accordance with the Servicing Standard. The applicable Master Servicer shall
prepare all documents necessary and appropriate to effect any such waiver and
shall coordinate with the related Borrower for the execution and delivery of
such documents.
(f) Notwithstanding anything in this Section 3.20 or in Section 3.08,
Section 3.24, Section 3.27 and/or Section 3.28 to the contrary, the applicable
Master Servicer shall not be required to seek the consent of, or provide prior
notice to, the applicable Special Servicer, any Certificateholder, the
applicable Serviced Loan Group Controlling Party or any Serviced Non-Pooled Pari
Passu Companion Noteholder or obtain any confirmation from the Rating Agencies
with respect to the absence of an Adverse Rating Event (unless required by the
Mortgage Loan Documents) in order to approve the following modifications,
waivers or amendments of the Performing Serviced Mortgage Loans: (i) waivers of
minor covenant defaults (other than financial covenants), including late
financial statements; (ii) releases of
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non-material parcels of a Mortgaged Property (including, without limitation, any
such releases (A) to which the related Mortgage Loan Documents expressly require
the mortgagee thereunder to make such releases upon the satisfaction of certain
conditions (and the conditions to the release that are set forth in the related
Mortgage Loan Documents do not include the approval of the lender or the
exercise of lender discretion (other than confirming the satisfaction of the
other conditions to the release set forth in the related Mortgage Loan Documents
that do not include any other approval or exercise)) and such release is made as
required by the related Mortgage Loan Documents or (B) that are related to any
condemnation action that is pending, or threatened in writing, and would affect
a non-material portion of the Mortgaged Property); (iii) grants of easements or
rights of way that do not materially affect the use or value of a Mortgaged
Property or the Borrower's ability to make any payments with respect to the
related Serviced Mortgage Loan; (iv) granting other routine approvals, including
the granting of subordination and nondisturbance and attornment agreements and
consents involving routine leasing activities that affect less than the greater
of (a) 30% of the net rentable area of the Mortgaged Property or (b) 30,000
square feet of the Mortgaged Property (but the applicable Master Servicer shall
deliver to the Controlling Class Representative copies of any such approvals
granted by such Master Servicer); (v) approval of annual budgets to operate the
Mortgaged Property; (vi) grants of any waiver or consent that the applicable
Master Servicer determines (in accordance with the Servicing Standard) to be
immaterial; (vii) approving a change of the property manager at the request of
the related Borrower (provided that the related Mortgaged Property is not a
hospitality property and either (A) the change occurs in connection with an
assignment and assumption approved in accordance with Section 3.08 or (B) the
successor property manager is not affiliated with the Borrower and is a
nationally or regionally recognized manager of similar properties and the
related Serviced Pooled Mortgage Loan does not have a Stated Principal Balance
that is greater than or equal to $8,500,000 or 2% of the then aggregate Stated
Principal Balance of the Mortgage Pool, whichever is less, or (viii)
modifications to cure any ambiguity in, or to correct or supplement any
provision of a Mortgage Loan Group Intercreditor Agreement to the extent
permitted therein without obtaining confirmation from the Rating Agencies with
respect to the absence of an Adverse Rating Event, except that Controlling Class
Certificateholder consent shall be required for any such modification; provided
that such modification, waiver, consent or amendment (x) would not constitute a
"significant modification" of the subject Serviced Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to any Grantor Trust Pool, and (y) would be consistent with
the Servicing Standard.
(g) If and to the extent that the Trust, as holder of a
Non-Trust-Serviced Pooled Mortgage Loan, is entitled to consent to or approve
any modification, waiver or amendment of such Non-Trust-Serviced Pooled Mortgage
Loan, the applicable Master Servicer shall be responsible for responding to any
request for such consent or approval in accordance with the Servicing Standard,
and subject to the same conditions and/or restrictions, as if such
Non-Trust-Serviced Pooled Mortgage Loan was a Performing Serviced Mortgage Loan.
Insofar as any other Person would have consent rights hereunder with respect to
a similar modification, waiver or amendment of a Pooled Mortgage Loan that is a
Performing Serviced Mortgage Loan (other than Pooled Mortgage Loans included in
a Serviced Mortgage Loan Group), such Person shall likewise have the same
consent rights, subject to the same conditions and/or restrictions, with respect
to such modification, waiver or amendment of such Non-Trust-Serviced Pooled
Mortgage Loan.
(h) The applicable Master Servicer shall, as to each Serviced Mortgage
Loan which is secured by the interest of the related Borrower under a Ground
Lease as listed on the Pooled Mortgage Loan Schedule, in accordance with the
related Mortgage Loan Documents, promptly (and, in any event, within 45 days)
after the Closing Date notify the related ground lessor of the transfer of such
Mortgage Loan to the Trust pursuant to this Agreement and inform such ground
lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to such Master Servicer.
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer
and Applicable Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Serviced Mortgage Loan, the applicable Master Servicer shall
immediately give notice thereof to the Controlling Class Representative (and to
the related Serviced Non-Pooled Mortgage Loan Noteholder), and if the applicable
Master Servicer
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is not also the applicable Special Servicer, the applicable Master Servicer
shall immediately give notice thereof to the applicable Special Servicer and the
Trustee, and shall deliver the related Servicing File to the applicable Special
Servicer and shall use its best reasonable efforts to provide the applicable
Special Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to such Mortgage Loan and reasonably requested by the
applicable Special Servicer to enable such Special Servicer to assume its
functions hereunder with respect thereto without acting through a Sub-Servicer.
The information, documents and records to be delivered by the applicable Master
Servicer to the applicable Special Servicer pursuant to the prior sentence shall
include, but not be limited to, financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, Insurance Policies, UCC
Financing Statements and tenant estoppels, to the extent they are in the
possession of such Master Servicer (or any Sub-Servicer thereof). The applicable
Master Servicer shall use its best reasonable efforts to comply with the
preceding two sentences within five (5) Business Days of the occurrence of each
related Servicing Transfer Event. No later than ten Business Days before the
applicable Master Servicer is required to deliver a copy of the related
Servicing File to the applicable Special Servicer, such Master Servicer shall
review such Servicing File and request from the Trustee any material documents
that it is aware are missing from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the applicable Master Servicer is not also the
applicable Special Servicer, the applicable Special Servicer shall immediately
give notice thereof to the applicable Master Servicer, the Trustee and the
Controlling Class Representative (and to the related Serviced Non-Pooled
Mortgage Loan Noteholder) and shall return the related Servicing File within
five Business Days to the applicable Master Servicer. Upon giving such notice
and returning such Servicing File to the applicable Master Servicer, the
applicable Special Servicer's obligation to service such Mortgage Loan, and the
applicable Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
applicable Master Servicer to service and administer such Mortgage Loan shall
resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the applicable Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the applicable Master
Servicer with respect to any such Cross-Collateralized Mortgage Loan upon its
becoming a Corrected Mortgage Loan, the applicable Master Servicer and the
applicable Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loan, the applicable
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while the
subject Serviced Mortgage Loan is a Specially Serviced Mortgage Loan, for
inclusion in the related Mortgage File (with a copy of each such original to the
applicable Master Servicer), and copies of any additional related Mortgage Loan
information, including correspondence with the related Borrower generated while
the subject Serviced Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The applicable Master Servicer and the applicable Special Servicer
shall each furnish to the other, upon reasonable request, such reports,
documents, certifications and information in its possession, and access to such
books and records maintained thereby, as may relate to any Serviced Mortgage
Loan or Administered REO Property and as shall be reasonably required by the
requesting party in order to perform its duties hereunder.
(d) In connection with the performance of its obligations hereunder
with respect to any Serviced Mortgage Loan or Administered REO Property, each of
the applicable Master Servicer and the applicable Special Servicer shall be
entitled to rely upon written information provided to it by the other.
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SECTION 3.22. Sub-Servicing Agreements and the Primary Servicing
Agreements.
(a) Each Master Servicer and the applicable Special Servicer may enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of their respective obligations hereunder, provided that (A) in each
case, the Sub-Servicing Agreement (as it may be amended or modified from time to
time): (i) insofar as it affects the Trust, is consistent with this Agreement in
all material respects; (ii) expressly or effectively provides that if such
Master Servicer or Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), any successor to such Master Servicer or the applicable
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of such Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(f), terminate such rights and obligations without payment of any fee
(provided, however, that the 0000 Xxxxxxxx Sub-Servicing Agreement shall not be
terminated except for cause or at the direction of the related Serviced Mortgage
Loan Group Controlling Party at its own expense); (iii) prohibits the
Sub-Servicer from modifying any Mortgage Loan or commencing any foreclosure or
similar proceedings with respect to any Mortgaged Property without the consent
of such Master Servicer and, further, prohibits the Sub-Servicer from taking any
action that such Master Servicer would be prohibited from taking hereunder; (iv)
if it is entered into by a Master Servicer, does not purport to delegate or
effectively delegate to the related Sub-Servicer any of the rights or
obligations of the applicable Special Servicer with respect to any Specially
Serviced Mortgage Loan or otherwise; (v) provides that the Trustee, for the
benefit of the Certificateholders (and, in the case of a Sub-Servicing Agreement
related to 0000 Xxxxxxxx Loan Group, also for the benefit of the related
Non-Pooled Subordinate Noteholder(s)), shall be a third party beneficiary under
such agreement, but that (except to the extent the Trustee or its designee
assumes the obligations of such Master Servicer or such Special Servicer, as the
case may be, thereunder as contemplated by the immediately preceding clause (ii)
and except with respect to the obligations of any applicable successor Master
Servicer under a Designated Sub-Servicer Agreement) none of the Trustee, any
successor to such Master Servicer or such Special Servicer, as the case may be,
or any Certificateholder shall have (and, in the case of a Sub-Servicing
Agreement related to 0000 Xxxxxxxx Loan Group, the related Non-Pooled
Subordinate Noteholder(s) also shall not have) any duties under such agreement
or any liabilities arising therefrom except as explicitly permitted herein; (vi)
permits any purchaser of a Pooled Mortgage Loan pursuant to this Agreement to
terminate such agreement with respect to such purchased Pooled Mortgage Loan
without cause and without payment of any termination fee; (vii) does not permit
the subject Sub-Servicer any rights of indemnification out of the Trust Fund
except through such Master Servicer or such Special Servicer, as the case may
be, pursuant to Section 6.03; (viii) does not impose any liability or
indemnification obligation whatsoever on the Trustee or the Certificateholders
with respect to anything contained therein; and (ix) in the case of the 0000
Xxxxxxxx Loan Group, provides that such Sub-Servicing Agreement may be
terminated, without cause and without payment of any penalty or termination fee,
only at the direction of the related Serviced Mortgage Loan Group Controlling
Party; and (B) the Servicer Report Administrator shall not be entitled to enter
into any Sub-Servicing Agreement to provide for the performance by third parties
of any or all of the obligations imposed on it hereunder in its capacity as
Servicer Report Administrator. The applicable Master Servicer for the PCF Pooled
Mortgage Loans, the PCFII Pooled Mortgage Loans and the Nationwide Pooled
Mortgage Loans is hereby authorized and directed to execute and deliver a
separate Primary Servicing Agreement for (i) the PCF Pooled Mortgage Loans and
PCFII Pooled Mortgage Loans and (ii) the Nationwide Pooled Mortgage Loans. Each
party to this Agreement hereby acknowledges and accepts the terms and provisions
of such Primary Servicing Agreement and agrees that, notwithstanding any other
provision of this Agreement to the contrary: (A) if such party is required
hereunder to deliver any notice, certification, report, schedule, statement or
other type of writing to the applicable Master Servicer for the Pooled Mortgage
Loans that are the subject of such Primary Servicing Agreement, then, insofar as
such writing relates to one or more of such Pooled Mortgage Loans, such party
shall deliver such writing both to such applicable Master Servicer and to the
applicable Primary Servicer; (B) if any duty or obligation of the applicable
Master Servicer is delegated to the applicable Primary Servicer under the
applicable Primary Servicing Agreement, and such task involves or requires the
consent of the applicable Special Servicer, then the applicable Special Servicer
shall accept the performance of such duty or obligation directly by the
applicable Primary Servicer (but such performance must otherwise comply with the
other provisions of this Agreement) as if the applicable Master Servicer were
effecting such performance and the applicable Primary Servicer (in addition to
the applicable Master Servicer) shall
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have the direct benefit of the related conditions or duties imposed on the
Special Servicer or by which the Special Servicer is bound in connection
therewith (including, without limitation, any time periods for consent or deemed
consent to be observed by the applicable Special Servicer or by which such
Special Servicer is bound); (C) the applicable Primary Servicer (in addition to
the applicable Master Servicer) shall have the benefit of Section 6.03 of this
Agreement to the same extent as if it were the applicable Master Servicer (that
is, only if, and to the extent that, the applicable Master Servicer would have
been entitled to indemnification under such Section 6.03 if it were directly
servicing the applicable Pooled Mortgage Loans that are being primary serviced
by the applicable Primary Servicer); (D) the applicable Primary Servicer (in
addition to the applicable Master Servicer) shall be entitled to engage
Sub-Servicers in accordance with this Section 3.22 (including the engagement of
a Sub-Servicer under a Designated Sub-Servicing Agreement as contemplated under
subsection (f)) as if the applicable Primary Servicer were a Master Servicer
(subject to such limitations, if any, that are imposed on such engagement under
the terms of such Primary Servicing Agreement), and any successor to the
applicable Master Servicer shall be required to assume any Designated
Sub-Servicing Agreement between the applicable Primary Servicer and the
applicable Sub-Servicer in the event of a termination of such Primary Servicer
under the applicable Primary Servicing Agreement (unless the Sub-Servicer is in
default under the terms of such Designated Sub-Servicing Agreement); (E)
amendments to this Agreement shall be restricted in the manner contemplated by
Section 12.01(h); and (F) the applicable Primary Servicer shall be a third party
beneficiary of this sentence.
(b) References in this Agreement to actions taken or to be taken by a
Master Servicer or Special Servicer include actions taken or to be taken by a
Sub-Servicer on behalf of such Master Servicer or such Special Servicer or by a
Primary Servicer on behalf of the applicable Master Servicer with respect to the
Pooled Mortgage Loans that are the subject of a Primary Servicing Agreement, as
applicable; and, in connection therewith, all amounts advanced by any
Sub-Servicer or Primary Servicer, as applicable, to satisfy the obligations of a
Master Servicer or Special Servicer hereunder to make Advances shall be deemed
to have been advanced by such Master Servicer or Special Servicer, as the case
may be, out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer or Primary Servicer, as applicable, through
such Master Servicer in the same manner and out of the same funds as if such
Sub-Servicer or Primary Servicer, as applicable, were such Master Servicer or
Special Servicer, as the case may be. Such Advances shall accrue interest in
accordance with Sections 3.11(g) and/or 4.03(d), such interest to be allocable
between such Master Servicer or Special Servicer, as the case may be, and such
Sub-Servicer or Primary Servicer, as applicable, as they may agree. For purposes
of this Agreement, the Master Servicers and the Special Servicers shall each be
deemed to have received any payment when a Sub-Servicer retained by it, or a
Primary Servicer on behalf of the applicable Master Servicer with respect to the
Pooled Mortgage Loans that are the subject of a Primary Servicing Agreement, as
applicable, receives such payment.
(c) The Master Servicers and the Special Servicers shall each deliver
to the Trustee copies of all Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents.
(d) Each Sub-Servicer actually performing servicing functions and the
Primary Servicers (i) shall be authorized to transact business in the state or
states in which the Mortgaged Properties for the Mortgage Loans it is to service
are situated, if and to the extent required by applicable law, and (ii) other
than with respect to Principal Global Investors, LLC, to the extent
sub-servicing multifamily loans, shall be an approved conventional
seller/servicer of multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a
HUD-Approved Servicer.
(e) Each of the Master Servicers and the Special Servicer, for the
benefit of the Trustee and the Certificateholders (and, in the case of a
Sub-Servicing Agreement related to a Serviced Mortgage Loan Group, for the
benefit of the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), shall
(at no expense to any other party hereto or to the Certificateholders or the
Trust) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements and, in the case of the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
a Primary Servicing Agreement, of such Primary Servicer under such Primary
Servicing Agreement. Such enforcement, including the legal prosecution of
claims, termination of Sub-Servicing Agreements or Primary Servicing Agreements,
as applicable, in accordance with their respective terms and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as such Master
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Servicer or Special Servicer, as applicable, in its reasonable judgment, would
require were it the owner of the subject Mortgage Loans. Subject to the terms of
the related Sub-Servicing Agreement or Primary Servicing Agreement, as
applicable, including any provisions thereof limiting the ability of a Master
Servicer or Special Servicer, as applicable, to terminate a Sub-Servicer or
Primary Servicer, each of the Master Servicers and the Special Servicers shall
have the right to remove a Sub-Servicer retained by it and, in the case of the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
such Primary Servicing Agreement, the applicable Primary Servicer, at any time
it considers such removal to be in the best interests of Certificateholders
(and/or, in the case of a Sub-Servicer for a Serviced Mortgage Loan Group, the
related Serviced Non-Pooled Mortgage Loan Noteholder(s)), as applicable, subject
to, in the case of a Sub-Servicer for the 0000 Xxxxxxxx Loan Group, the approval
of the related Serviced Mortgage Loan Group Controlling Party if such approval
is required under Section 3.27.
(f) It shall be permissible for each Designated Sub-Servicing
Agreement to prohibit a termination of the related Sub-Servicer without cause
(except that cause shall be defined to include the occurrence of an Adverse
Rating Event with respect to the continuation of such Sub-Servicer to the extent
it is actually performing servicing functions or any event caused by such
Sub-Servicer which creates an Event of Default of the applicable Master Servicer
under this Agreement) or to require the payment of a termination fee (in an
amount not to exceed the amount, if any, set forth opposite the related
Sub-Servicer on Schedule III) upon any termination without cause. Any such right
of a Sub-Servicer under a Designated Sub-Servicing Agreement shall be binding
upon any successor to the applicable Master Servicer (including the Trustee) and
the obligation to pay such termination fee upon any termination of such
Sub-Servicer shall constitute a corporate obligation (not reimbursable by the
Trust or any of the other parties to this Agreement, including the applicable
terminated Master Servicer) of such successor.
(g) In the event the Trustee or its designee assumes the rights and
obligations of a Master Servicer or a Special Servicer under any Sub-Servicing
Agreement or any Primary Servicing Agreement, such Master Servicer or such
Special Servicer, as the case may be, at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
such Sub-Servicing Agreement or Primary Servicing Agreement, as applicable, and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held on behalf of it thereunder, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreement or the Primary Servicing Agreement, as applicable, to the assuming
party.
(h) Notwithstanding any Sub-Servicing Agreement entered into by it
and, in the case of the applicable Master Servicer for the Pooled Mortgage Loans
that are the subject of a Primary Servicing Agreement, notwithstanding the
Primary Servicing Agreements, the Master Servicers and the Special Servicers
shall each remain obligated and liable to the Trustee and the Certificateholders
(and, in the case of a Serviced Mortgage Loan Group, the related Serviced
Non-Pooled Mortgage Loan Noteholder(s)) for the performance of their respective
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if it alone
were servicing and administering the Mortgage Loans and/or REO Properties for
which it is responsible. The Master Servicers and the Special Servicers shall
each pay the fees of any Sub-Servicer retained by it and, in the case of the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
a Primary Servicing Agreement, the fees of such Primary Servicer, in accordance
with the respective Sub-Servicing Agreement or Primary Servicing Agreement, as
applicable, and, in any event, from its own funds (or from funds otherwise then
payable to it hereunder).
(i) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with a Master Servicer, or by a Primary Servicer pursuant to a Primary
Servicing Agreement with the applicable Master Servicer for the Pooled Mortgage
Loans that are the subject of such Primary Servicing Agreement, as applicable,
shall for all purposes under this Agreement be deemed to be an account
established and maintained by such Master Servicer.
(j) Notwithstanding any contrary provisions of the foregoing
subsections of this Section 3.22, the appointment by a Master Servicer or a
Special Servicer of one or more third-party contractors for the purpose of
performing discrete, ministerial functions shall not constitute the appointment
of Sub-Servicers and shall not subject to the
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provisions of this Section 3.22; provided, however, that such Master Servicer or
such Special Servicer, as the case may be, shall remain responsible for the
actions of such third-party contractors as if it were alone performing such
functions and shall pay all fees and expenses of such third-party contractors.
The proviso to the preceding sentence shall not be construed to limit the right
of a Master Servicer or a Special Servicer to be reimbursed for any cost or
expense for which it is otherwise entitled to reimbursement under this
Agreement.
(k) In addition to the conditions and restrictions set forth in the
other subsections of this Section 3.22, neither the applicable Master Servicer
nor the applicable Special Servicer shall enter into any Sub-Servicing Agreement
with respect to the 0000 Xxxxxxxx Loan Group without the consent of the 0000
Xxxxxxxx Controlling Party. In addition, the 0000 Xxxxxxxx Controlling Party may
require the applicable Master Servicer or the applicable Special Servicer to
terminate any particular Sub-Servicing Agreement with respect to the 0000
Xxxxxxxx Loan Group. Furthermore, if PAR is no longer a Master Servicer, then
the 0000 Xxxxxxxx Controlling Party may require the applicable Master Servicer
to (A) appoint a Sub-Servicer (acceptable to the 0000 Xxxxxxxx Controlling Party
in its sole discretion) with respect to the 0000 Xxxxxxxx Loan Group under a
Sub-Servicing Agreement that satisfies the applicable conditions set forth in
the other subsections of this Section 3.22 and (B) delegate all of its primary
servicing responsibilities and duties, and assign all of the corresponding
master servicing compensation (exclusive of a portion of the corresponding
Master Servicing Fee that is in excess of a reasonable primary servicing fee),
with respect to the 0000 Xxxxxxxx Loan Group to such Sub-Servicer.
(l) The General Special Servicer shall not enter into any
Sub-Servicing Agreement unless the Controlling Class Representative has
consented thereto or such Sub-Servicing Agreement is required to be entered into
in connection with a Serviced Mortgage Loan Group pursuant to the exercise by a
related Serviced Non-Pooled Mortgage Loan Noteholder's exercise of its rights
under Section 7.01(b) of this Agreement, and the Special Servicer has received
written confirmation from each Rating Agency to the effect that entering into
such Sub-Servicing Agreement will not cause an Adverse Rating Event.
(m) Each Primary Servicer shall indemnify (out of its own funds
without reimbursement therefor) the Trustee, the Special Servicer, the
Depositor, the Certificate Administrator, the Trust, and any director, officer,
employee, agent or Affiliate 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 Certificate Administrator and the Trust
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of any of such Primary Servicer's duties under
this Agreement or the applicable Primary Servicing Agreement or by reason of
negligent disregard of such Primary Servicer's obligations and duties hereunder
or 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 such Primary Servicer is replaced,
such Primary Servicer agrees that the amount of such claims, losses, penalties,
fines, forfeitures, 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 Depositor or the Certificate Administrator, as applicable, shall
immediately notify such Primary Servicer if a claim is made by any Person with
respect to this Agreement or the related Primary Servicing Agreement, the PCF
Pooled Mortgage Loans, the PCFII Pooled Mortgage Loans or the Nationwide Pooled
Mortgage Loans entitling the Trustee, the Special Servicer, the Depositor, the
Certificate Administrator or the Trust to indemnification under this Section,
whereupon such Primary Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Special Servicer, the
Depositor or the Certificate Administrator, 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 the Trustee, the
Special Servicer, the Depositor and/or the Certificate Administrator, as
applicable, in respect of such claim. Any failure to so notify such Primary
Servicer shall not affect any rights the Trustee, the Special Servicer, the
Depositor, the Certificate Administrator or the Trust may have to
indemnification under this Agreement, the applicable Primary Servicing Agreement
or otherwise, unless such Primary Servicer's defense of such claim is materially
prejudiced thereby. Such indemnification shall survive the termination of this
Agreement and such Primary Servicing Agreement and the resignation or
termination of the applicable Master Servicer, the Special Servicer, the
Certificate Administrator and/or the Trustee. Any expenses incurred or
indemnification payments made by the Primary Servicer shall be reimbursed by the
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party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of such Primary Servicer was not
culpable or that such Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
(n) The parties to this Agreement acknowledge that the Nationwide
Primary Servicer has executed an undertaking, copies of which are attached
hereto as Exhibit R, in which such Primary Servicer has agreed to the
obligations purported to be imposed on it under Section 3.22(l). The parties to
this Agreement agree that each Primary Servicer shall be a third-party
beneficiary of Section 3.22(l) to the extent of the rights granted to such
Primary Servicer under such Section. The parties acknowledge that the PGI
Primary Servicer has affirmed its obligations under Section 3.22(l) by executing
this Agreement.
(o) Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's rights and obligations under the
related Primary Servicing Agreement shall expressly survive a termination of the
applicable Master Servicer under this Agreement (unless such Primary Servicing
Agreement has been terminated in accordance with its terms) and (ii) any
successor to the applicable Master Servicer hereunder (including, without
limitation, the Trustee if its assumes the servicing obligations of such Master
Servicer) shall be deemed to automatically have assumed and agreed to the terms
and provisions of each Primary Servicing Agreement without any further action,
immediately upon such succession. Each Primary Servicer shall be a third party
beneficiary of this subsection.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative; provided that, subject to the last sentence of
this Section 3.23(a), and the acquisition by ARCap CMBS Fund II REIT, Inc. of
the Certificates of the Controlling Class, ARCap REIT, Inc. shall serve as the
initial Controlling Class Representative. Upon (i) the receipt by the
Certificate Administrator of written requests for the selection of a successor
Controlling Class Representative from the Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of Certificates representing more than 50%
of the Class Principal Balance of the Controlling Class, (ii) the resignation or
removal of the Person acting as Controlling Class Representative or (iii) a
determination by the Certificate Administrator that the Controlling Class has
changed, the Certificate Administrator shall promptly notify the Depositor and
the Holders (and, in the case of Book-Entry Certificates, to the extent actually
known to a Responsible Officer of the Certificate Administrator or identified
thereto by the Depositary or the Depositary Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process established by the
Certificate Administrator for selecting a Controlling Class Representative,
which process shall include the designation of the Controlling Class
Representative by the Majority Controlling Class Certificateholder(s) by a
writing delivered to the Certificate Administrator. No appointment of any Person
as a successor Controlling Class Representative shall be effective until such
Person provides the Certificate Administrator with (i) written confirmation of
its acceptance of such appointment, (ii) written confirmation of its agreement
to keep confidential, for so long as reports are required to be filed with
respect to the Trust under Section 15(d) of the Exchange Act, all information
received by it with respect to the Trust and its assets that has not been filed
with the Commission, (iii) an address and facsimile number for the delivery of
notices and other correspondence and (iv) a list of officers or employees of
such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and facsimile numbers).
(b) Within ten Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Certificate Administrator has actual knowledge, the Certificate
Administrator shall deliver to each of the Trustee, the Master Servicers and the
Special Servicers the identity of the Controlling Class Representative and a
list of each Holder (or, in the case of Book-Entry Certificates, to the extent
actually known to a Responsible Officer of the Certificate Administrator or
identified thereto by the Depositary or the Depositary Participants, each
Certificate Owner) of the Controlling Class, including, in each case, names and
addresses. The Certificate Administrator shall also deliver such information (of
which a Responsible Officer of the Certificate Administrator has actual
knowledge) to a Master Servicer
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or a Special Servicer promptly upon request therefor by such Master Servicer or
the Special Servicer, as the case may be. With respect to such information, the
Certificate Administrator shall be entitled to conclusively rely on information
provided to it by the Holders (or, in the case of Book-Entry Certificates,
subject to Section 5.06, by the Depositary or the Certificate Owners) of such
Certificates, and the Master Servicers and the Special Servicers shall each be
entitled to rely on such information provided by the Certificate Administrator
with respect to any obligation or right hereunder that such Master Servicer or
such Special Servicer, as the case may be, may have to deliver information or
otherwise communicate with the Controlling Class Representative or any of the
Holders (or, if applicable, Certificate Owners) of the Controlling Class. In
addition to the foregoing, within two (2) Business Days of the selection,
resignation or removal of a Controlling Class Representative, the Certificate
Administrator shall notify the other parties to this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as such
by giving written notice to the Certificate Administrator, the Trustee, each
Special Servicer, each Master Servicer and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Certificate Administrator, the
Trustee, each Special Servicer, each Master Servicer and such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant
to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Certificate Administrator
and each other party to this Agreement and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class, in
writing, of the resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall
be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Certificate
Administrator, the Trustee, the applicable Master Servicer, the applicable
Primary Servicer, the applicable Special Servicer and (in any case) the General
Special Servicer, whereupon (if a Special Servicer, a Master Servicer, a Primary
Servicer, the Certificate Administrator, the Trustee, any Fiscal Agent or the
Trust are also named parties to the same action and, in the sole judgment of the
General Special Servicer, (i) the Controlling Class Representative had acted in
good faith, without negligence or willful misfeasance, with regard to the
particular matter at issue, and (ii) there is no potential for a Special
Servicer, a Master Servicer, a Primary Servicer, the Certificate Administrator,
the Trustee, any Fiscal Agent or the Trust to be an adverse party in such action
as regards the Controlling Class Representative), the General Special Servicer
on behalf of the Trust shall, subject to Section 6.03, assume the defense of any
such claim against the Controlling Class Representative; provided, however, that
no judgment against the Controlling Class Representative shall be payable out of
the Trust Fund. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) Subject to Section 3.24(c), the applicable Special Servicer shall
prepare a report (the "Asset Status Report") recommending the taking of certain
actions for each Serviced Mortgage Loan that becomes a Specially Serviced
Mortgage Loan and deliver such Asset Status Report to the Controlling Class
Representative and the applicable Master Servicer not later than 45 days after
the servicing of such Serviced Mortgage Loan is transferred to the applicable
Special Servicer. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
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(i) a summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Borrower;
(ii) a discussion of the legal and environmental considerations
reasonably known to the applicable Special Servicer (including without
limitation by reason of any Phase I Environmental Assessment and any
additional environmental testing contemplated by Section 3.09(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 applicable 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 Controlling Class Representative affirmatively approves in
writing an Asset Status Report, (ii) after ten Business Days from receipt of an
Asset Status Report the Controlling Class Representative does not object to such
Asset Status Report or (iii) within ten Business Days after receipt of an Asset
Status Report the Controlling Class Representative objects to such Asset Status
Report and the applicable Special Servicer makes a determination in accordance
with the Servicing Standard that such objection is not in the best interest of
all the Certificateholders (and, if affected, any Serviced Non-Pooled Mortgage
Loan Noteholder), all as a collective whole, the applicable Special Servicer
shall take the recommended actions described in the Asset Status Report. If
within ten Business Days after receipt of an Asset Status Report the Controlling
Class Representative objects to such Asset Status Report and the applicable
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 (and, if affected, any Serviced Non-Pooled Mortgage Loan
Noteholder), all as a collective whole, then (subject to Section 3.24(c)) the
applicable 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 Controlling Class Representative. The
applicable Special Servicer shall, subject to Section 3.24(c), revise such Asset
Status Report as provided in the prior sentence until the earliest of (a) the
delivery by the Controlling Class Representative of an affirmative approval in
writing of such revised Asset Status Report, (b) the failure of the Controlling
Class Representative 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 applicable
Special Servicer shall implement the recommended action as outlined in the most
recent version of such Asset Status Report (provided that the applicable Special
Servicer shall not take any action that is contrary to applicable law or the
terms of the applicable Mortgage Loan Documents). The applicable Special
Servicer may, from time to time, subject to Section 3.24(c), 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 applicable 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 Controlling Class
Representative may reject such report if (A) the applicable Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders (and, if affected, any
Serviced Non-Pooled Mortgage Loan Noteholder), all as a collective whole, and
(B) it has made a reasonable effort to contact the
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Controlling Class Representative. The applicable 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 applicable Special Servicer takes
any action inconsistent with an Asset Status Report that has been adopted as
provided above, the applicable Special Servicer shall promptly notify the
Controlling Class Representative of such inconsistent action and provide a
reasonably detailed explanation of the reasons therefor.
The applicable Special Servicer shall deliver to the applicable Master
Servicer, the Controlling Class Representative 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. The applicable Special
Servicer shall deliver to the applicable Master Servicer, the Controlling Class
Representative and each Rating Agency any comparable report contemplated by the
final sentence of Section 3.24(c).
(b) In addition, notwithstanding anything in any other Section of this
Agreement to the contrary, but in all cases subject to Section 3.24(c), Section
3.27 and Section 3.28, the applicable Special Servicer will not be permitted to
take, or consent to the applicable Master Servicer's taking, any of the actions
identified in clauses (i) through (x) of this sentence not otherwise
specifically covered by an approved Asset Status Report, unless and until the
applicable Special Servicer has notified the Controlling Class Representative in
writing of the applicable Special Servicer's intent to take or permit the
particular action and the Controlling Class Representative has consented (or has
failed to object) thereto in writing within ten Business Days of having been
notified thereof in writing and having been provided with all reasonably
requested information with respect thereto (or, in the case of a proposed action
for which the applicable Master Servicer has requested approval from the
applicable Special Servicer, within such shorter period during which the
applicable Special Servicer is initially entitled to withhold consent without
being deemed to have approved the action):
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an Administered REO Property) of the ownership of
the property or properties securing any Specially Serviced Mortgage Loan as
comes into and continues in default;
(ii) any modification, amendment or waiver of a monetary term
(including a change in the timing of payments but excluding the waiver of
Default Charges) or any non-monetary term (excluding the waiver of any
"due-on-sale" or "due-on-encumbrance" clause, which clauses are addressed
in clause (ix) below) of (A) any Performing Serviced Mortgage Loan that has
a principal balance of $2,500,000 or more (or, if the proposed
modification/waiver is an extension of maturity or a waiver of Post-ARD
Additional Interest under the circumstances contemplated by Section
3.20(e), any such Mortgage Loan without regard to balance) or (B) any
Specially Serviced Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(iv) any determination to bring an Administered REO Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at an Administered REO Property;
(v) any release of collateral for any Serviced Mortgage Loan
(except that in circumstances where either (x) both (A) the relevant
Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with an
outstanding principal balance of less than $2,500,000 and (B) the release
of collateral is not conditioned on obtaining the consent of the lender
under the related Mortgage Loan Documents, or (y) the release of collateral
is made upon a satisfaction of the subject Serviced Mortgage Loan, the
consent of (or failure to object by) the Controlling Class Representative
shall not constitute a condition to the taking of or consent to such action
by the applicable Special Servicer but the applicable Special Servicer
shall deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action);
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(vi) any acceptance of substitute or additional collateral for a
Serviced Mortgage Loan (except that in circumstances where either (x) the
relevant Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with
an outstanding principal balance of less than $2,500,000 or (y) the
acceptance of the substitute or additional collateral is not conditioned on
obtaining the consent of the lender, the consent of (or failure to object
by) the Controlling Class Representative shall not constitute a condition
to the taking of or consent to such action by the applicable Special
Servicer but the applicable Special Servicer shall deliver notice of such
action to the Controlling Class Representative simultaneously with or
promptly following its taking or consenting to such action);
(vii) any releases of any Letters of Credit, Reserve Funds or
other Additional Collateral with respect to any Mortgaged Property securing
a Serviced Mortgage Loan (except that in circumstances where either (x) the
relevant Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with
a principal balance of less than $2,500,000 or (y) the release of the
applicable Letter of Credit, Reserve Funds or Additional Collateral is not
conditioned on obtaining the consent of the lender, the consent of (or
failure to object by) the Controlling Class Representative shall not
constitute a condition to the taking of or consent to such action by the
applicable Special Servicer but the applicable Special Servicer shall
deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action);
(viii) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to any
Mortgaged Property securing a Serviced Mortgage Loan (except that in
circumstances where the relevant Serviced Mortgage Loan is a Performing
Serviced Mortgage Loan with a principal balance of less than $2,500,000,
the consent of (or failure to object by) the Controlling Class
Representative shall not constitute a condition to the taking of or consent
to such action by the applicable Special Servicer but the applicable
Special Servicer shall deliver notice of such action to the Controlling
Class Representative simultaneously with or promptly following its taking
or consenting to such action) or any modification, waiver or amendment of
any franchise or similar agreement, or any execution of a new franchise or
similar agreement, with respect to any hospitality property;
(ix) any approval of the assignment of the Mortgaged Property
securing any Serviced Mortgage Loan to and assumption of such Serviced
Mortgage Loan by another Person, any waiver of a "due-on-sale" clause in
any Mortgage Loan, any approval of a further encumbrance of the Mortgaged
Property securing any Serviced Mortgage Loan or any waiver of a
"due-on-encumbrance" clause in any Serviced Mortgage Loan (except that in
circumstances where the relevant Serviced Mortgage Loan is a Performing
Serviced Mortgage Loan with principal balance of less than $2,500,000, the
consent of (or failure to object by) the Controlling Class Representative
shall not constitute a condition to the taking of or consent to such action
by the applicable Special Servicer but the applicable Special Servicer
shall deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action); and
(x) any determination as to whether any type of property-level
insurance is required under the terms of any Serviced Mortgage Loan, is
available at commercially reasonable rates, is available for similar types
of 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 (except that in circumstances where the
relevant Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with
a principal balance of less than $2,500,000, the consent of (or failure to
object by) the Controlling Class Representative shall not constitute a
condition to the taking of or consent to such action by the applicable
Special Servicer but the applicable Special Servicer shall deliver notice
of such action to the Controlling Class Representative simultaneously with
or promptly following its taking or consenting to such action);
provided that, in the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
and any Serviced Non-Pooled Mortgage Loan Noteholder (as a collective whole),
the applicable Special Servicer may take any such action without waiting for the
Controlling Class Representative's response. For the avoidance of doubt, in the
case of Mortgage Loans that are not Specially Serviced Mortgage Loans, the
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requirement for approval or deemed approval of the Controlling Class
Representative in connection with any item described in the list above will
apply only to the extent that both (a) the proposed action is described in that
list and (b) the proposed action is a matter for which the applicable Master
Servicer must obtain the approval or deemed approval of the applicable Special
Servicer under the other provisions of this Agreement.
In addition, subject to Section 3.24(c), the Controlling Class
Representative may direct the applicable Special Servicer to take, or to refrain
from taking, such actions as the Controlling Class Representative may deem
advisable with respect to the servicing and administration of Specially Serviced
Pooled Mortgage Loans and/or Administered REO Properties or as to which
provision is otherwise made herein. Upon reasonable request, the applicable
Special Servicer shall provide the Controlling Class Representative with any
information in the applicable Special Servicer's possession with respect to such
matters, including, without limitation, its reasons for determining to take a
proposed action.
(c) Notwithstanding anything herein to the contrary: (i) none of the
Special Servicers shall have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
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 a Controlling Class Representative and before a
replacement is selected; and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a) or any
other provision of this Agreement, may (and the applicable Special Servicer
shall ignore and act without regard to any such advice, direction or objection
that such Special Servicer has determined, in its reasonable, good faith
judgment, would): (A) require or cause such Special Servicer to violate
applicable law, the terms of any Mortgage Loan or any other Section of this
Agreement, including the applicable Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
any Grantor Trust Pool, (C) expose the Trust, the Depositor, a Master Servicer
(or a Primary Servicer or Sub-Servicer acting on behalf of a Master Servicer), a
Special Servicer, the 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 a Master Servicer's or Special Servicer's responsibilities under this
Agreement.
(d) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Controlling Class Representative may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
(e) Notwithstanding anything to the contrary contained in this
Agreement, including other subsections of this Section 3.24, with respect to the
Serviced Non-Pooled Pari Passu Companion Loan, the Controlling Class
Representative shall have all the rights set forth in this Section 3.24, except
that, with respect to any action described in the related Mortgage Loan Group
Intercreditor Agreement as requiring prior consultation with all of the holders
of pari passu notes that are included in the related Mortgage Loan Group, the
applicable Special Servicer shall also consult with (but need not obtain the
approval of) the holder of the related Non-Pooled Pari Passu Companion Loan in
addition to obtaining the approval or deemed approval of the Controlling Class
Representative.
SECTION 3.25. Replacement of Special Servicers.
(a) Subject to Section 3.25(b), the Controlling Class Representative
may remove the existing General Special Servicer hereunder (with or without
cause) and appoint a successor to the existing General Special Servicer;
provided that if any such removal is made without cause, then (A) the costs of
transferring the special servicing
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responsibilities of the removed General Special Servicer to a successor thereto
shall be paid by the Certificateholders of the Controlling Class and (B) the
Controlling Class Representative shall have delivered or caused to have been
delivered to each of the parties hereto a copy of the request for the rating
confirmation described in clause (i) of subsection (b) that constitutes a
condition to the effectiveness of the removal and/or appointment, simultaneously
with or promptly following the delivery of such request to the Rating Agencies.
In addition, the Serviced Mortgage Loan Group Controlling Party for a Serviced
Mortgage Loan Group may, upon prior written notice to the respective parties
hereto, remove any existing related Loan Specific Special Servicer for such
Serviced Mortgage Loan Group hereunder (with or without cause) and appoint a
successor Loan Specific Special Servicer for such Serviced Mortgage Loan Group;
provided that, if any such removal is without cause, then (A) the costs of
transferring the special servicing responsibilities to a successor Loan Specific
Special Servicer shall be paid by such Serviced Mortgage Loan Group Controlling
Party and (B) such Serviced Mortgage Loan Group Controlling Party shall have
delivered or caused to have been delivered to each of the parties hereto a copy
of the request for the rating confirmation described in clause (i) of subsection
(b) that constitutes a condition to the effectiveness of the removal and/or
appointment, simultaneously with or promptly following the delivery of such
request to the Rating Agencies.
(b) No removal of a Special Servicer and/or appointment of a successor
thereto pursuant to Section 3.25(a) shall be effective until: (i) the Trustee
shall have received (A) written confirmation from each Rating Agency for the
Rated Certificates that such removal and/or appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and (for so long as any Serviced Non-Pooled Pari Passu
Companion Loan is serviced and administered under this Agreement for which any
Non-Pooled Pari Passu Companion Loan Securities are outstanding) from each
applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan
Securities, as applicable, that such removal and/or appointment will not result
in an Adverse Rating Event with respect to any class of such Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating Agency, (B) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the Person designated to be the successor to the
terminated Special Servicer, and (C) an Opinion of Counsel (which shall not be
an expense of the Trustee or the Trust) substantially to the effect that (1) the
removal of such terminated Special Servicer and/or the appointment of the Person
designated to serve as successor thereto is in compliance with this Section
3.25, (2) such designated Person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (3) the
Acknowledgment of Proposed Special Servicer, the form of which is attached
hereto as Exhibit I-2, has been duly authorized, executed and delivered by such
designated Person and (4) upon the execution and delivery of the Acknowledgment
of Proposed Special Servicer, such designated Person shall be bound by the terms
of this Agreement and, subject to customary bankruptcy and insolvency exceptions
and customary equity exceptions, this Agreement shall be enforceable against
such designated Person in accordance with its terms; and (ii) if such terminated
Special Servicer has been removed without cause, the Certificateholders of the
Controlling Class (or, if a Loan Specific Special Servicer is the terminated
Special Servicer, the related Serviced Mortgage Loan Group Controlling Party)
shall have delivered to the Trustee and the terminated Special Servicer such
Certificateholders' joint and several undertaking (or, if applicable, such
Serviced Mortgage Loan Group Controlling Party's undertaking) to pay any
expenses incurred by the Trustee and such terminated Special Servicer in
connection with the transfer of special servicing responsibilities to a
successor Special Servicer. With respect to the Tuscany Plaza Loan Group, so
long as a Tuscany Plaza Special Servicing Transfer Event exists, provided that
ARCap Servicing, Inc. (or an Affiliate thereof) satisfies the requirements
contained above in this Section 3.25(b), the Special Servicer for the Tuscany
Plaza Loan Group shall be ARCap Servicing, Inc. (or such Affiliate thereof).
(c) Any Special Servicer terminated pursuant to Section 3.25(a) shall
be deemed to have been so terminated simultaneously with the designated
successor's becoming the applicable Special Servicer hereunder; provided that
(i) the terminated Special Servicer shall be entitled to receive, in connection
with its termination, payment out of the Collection Accounts of all of its
accrued and unpaid Special Servicing Fees, as and to the extent provided in
Section 3.05(a), and reimbursement from the successor to such terminated Special
Servicer of all outstanding Servicing Advances made by such terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor to such terminated Special Servicer shall
be deemed to have made such Servicing Advances at the same time that such
terminated Special Servicer had actually made them), (ii) such terminated
Special
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Servicer shall thereafter be entitled to Workout Fees, as and to the extent
expressly permitted by Section 3.11(c), and (iii) such terminated Special
Servicer shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination; and provided, further, that such
terminated Special Servicer shall continue to be obligated to pay (and entitled
to receive) all other amounts accrued to (or owing by) it under this Agreement
on or prior to the effective date of such termination. Such terminated Special
Servicer shall cooperate with the Trustee and the replacement to such terminated
Special Servicer in effecting the transfer of such terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to this
Section 3.25, to the replacement to such terminated Special Servicer for
administration by it of all cash amounts that at the time are or should have
been credited by such terminated Special Servicer to the REO Account maintained
by it or to any Servicing Account or Reserve Account or should have been
delivered to the Master Servicers or that are thereafter received by or on
behalf of such terminated Special Servicer with respect to any Mortgage Loan or
REO Property.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to any Serviced Pooled Mortgage Loan (other
than any Serviced Pooled Mortgage Loan included in a Serviced Mortgage Loan
Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans)
or any REO Pooled Mortgage Loan that is a successor thereto and (to the extent
remitted to the applicable Master Servicer by the related Non-Trust Master
Servicer and, in any event, subject to the related Mortgage Loan Group
Intercreditor Agreement) any and all Default Charges that are actually received
by or on behalf of the Trust with respect to a Non-Trust-Serviced Pooled
Mortgage Loan or successor REO Mortgage Loan shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
first, to pay to the Trustee, the applicable Master Servicer or the
Special Servicer, in that order, any Advance Interest due and owing to such
party on outstanding Advances made thereby with respect to such Pooled
Mortgage Loan or REO Pooled Mortgage Loan, as the case may be;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the applicable Master Servicer or the Special Servicer since the
Closing Date with respect to such Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, which interest was paid from a source
other than Default Charges collected on such Pooled Mortgage Loan or REO
Pooled Mortgage Loan, as the case may be; and
third, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as follows: (A) if such Mortgage
Loan is a Non-Trust-Serviced Mortgage Loan, to the applicable Master
Servicer as Additional Master Servicing Compensation, in an amount equal to
the entirety of such remaining portion, or (B) if such Mortgage Loan is a
Serviced Mortgage Loan, on a pro rata basis: (i) to the applicable Master
Servicer as Additional Master Servicing Compensation, in an amount equal to
the product of such remaining portion and a fraction, the numerator of
which is the aggregate amount of Default Charges (to the extent not
previously collected and applied under this Section 3.26) accrued on such
Mortgage Loan while such Mortgage Loan was not a Specially Serviced
Mortgage Loan and the denominator of which is the aggregate amount of
Default Charges (to the extent not previously collected and applied under
this Section 3.26) theretofore accrued on such Mortgage Loan, and (ii) to
the Special Servicer as Additional Special Servicing Compensation, in an
amount equal to the product of such remaining portion and a fraction, the
numerator of which is the aggregate amount of Default Charges (to the
extent not previously collected and applied under this Section 3.26)
accrued on such Mortgage Loan while such Mortgage Loan is a Specially
Serviced Mortgage Loan and the denominator of which is the aggregate amount
of Default Charges (to the extent not previously collected and applied
under this Section 3.26) theretofore accrued on such Mortgage Loan.
(b) Default Charges applied to reimburse the Trust pursuant to clause
second of Section 3.26(a) are intended to be available for distribution on the
Certificates pursuant to Section 4.01(a), subject to application pursuant to
Section 3.05(a) or 3.05(b) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied
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to reimburse the Trust pursuant to clause second of Section 3.26(a) shall be
deemed to offset payments of Advance Interest in the chronological order in
which it accrued with respect to the subject Pooled Mortgage Loan or REO Pooled
Mortgage Loan (whereupon such Advance Interest shall thereafter be deemed to
have been paid out of Default Charges).
(c) Any and all amounts otherwise distributable to the Trust as the
holder of any Pooled Mortgage Loan included in a Serviced Mortgage Loan Group
that includes one or more one or more Serviced Non-Pooled Pari Passu Companion
Loans (or any successor REO Pooled Mortgage Loan) or to the holder of such
Serviced Non-Pooled Pari Passu Companion Loan as Default Charges with respect to
such Serviced Mortgage Loan Group, shall be applied for the following purposes
and in the following order, in each case to the extent of the remaining portion
of such amounts and as and to the extent permitted under the related Mortgage
Loan Group Intercreditor Agreement:
first, to pay to the Trustee, the applicable Master Servicer or the
Special Servicer, in that order, that portion of any Advance Interest due
and owing to such party on outstanding Servicing Advances made thereby with
respect to such Serviced Mortgage Loan Group or any related REO Property
that is allocable (which allocation shall be made pro rata according to the
respective outstanding principal balances of the Served Pooled Mortgage
Loan and the Serviced Non-Pooled Pari Passu Companion Loans in such
Serviced Mortgage Loan Group) to such Mortgage Loan;
second, either (x) in the case of the Pooled Mortgage Loan in such
Serviced Mortgage Loan Group, to pay to the Trustee or the applicable
Master Servicer, in that order, any Advance Interest due and owing to such
party on outstanding P&I Advances made thereby with respect to such Pooled
Mortgage Loan or (y) in the case of the Serviced Non-Pooled Pari Passu
Companion Loan in such Serviced Mortgage Loan Group, to pay to one or more
designees of the holder of such Mortgage Loan any interest similar to
Advance Interest due and owing to such designee on any debt service
advances made thereby for the benefit of the holder of such Serviced
Non-Pooled Pari Passu Companion Loans;
third, to reimburse the Trust for that portion of any Advance Interest
paid to the Trustee, the applicable Master Servicer or the Special Servicer
since the Closing Date with respect to Servicing Advances made with respect
to such Serviced Mortgage Loan Group and any related REO Property that is
allocable (which allocation shall be made pro rata according to the
respective outstanding principal balances of the Served Pooled Mortgage
Loan and the Serviced Non-Pooled Pari Passu Companion Loans in such
Serviced Mortgage Loan Group) to such Mortgage Loan, which interest was
paid from a source other than Default Charges collected on such Serviced
Mortgage Loan Group;
fourth, either (x) in the case of the Pooled Mortgage Loan in such
Mortgage Loan Group, to reimburse the Trust for any Advance Interest paid
to the Trustee or the applicable Master Servicer since the Closing Date
with respect to P&I Advances made thereby with respect to such Pooled
Mortgage Loan, which interest was paid from a source other than Default
Charges collected on such Serviced Mortgage Loan Group, or (y) in the case
of the Serviced Non-Pooled Pari Passu Companion Loans in such Serviced
Mortgage Loan Group, to reimburse the holder of such Serviced Non-Pooled
Pari Passu Companion Loans or its designee for any interest similar to
Advance Interest made for the benefit of the holder of the Serviced
Non-Pooled Pari Passu Companion Loans in such Mortgage Loan Group since the
Closing Date with respect to such Mortgage Loan, which interest was paid
from a source other than Default Charges collected on such Serviced
Mortgage Loan Group; and
fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") on a pro rata basis: (i) to the
applicable Master Servicer as Additional Master Servicing Compensation, in
an amount equal to the product of such remaining portion and a fraction,
the numerator of which is the aggregate amount of Default Charges (to the
extent not previously collected and applied under this Section 3.26)
accrued on such Serviced Mortgage Loan Group while the Mortgage Loans
therein were not Specially Serviced Mortgage Loans and the denominator of
which is the aggregate amount of Default Charges (to the extent not
previously collected and applied under this Section 3.26) theretofore
accrued on such Serviced Mortgage Loan Group and (ii) to the Special
Servicer as Additional Special Servicing Compensation, in an amount equal
to the
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product of such remaining portion and a fraction, the numerator of which is
the aggregate amount of Default Charges (to the extent not previously
collected and applied under this Section 3.26) accrued on such Serviced
Mortgage Loan Group while the Mortgage Loans therein were Specially
Serviced Mortgage Loans and the denominator of which is the aggregate
amount of Default Charges (to the extent not previously collected and
applied under this Section 3.26) theretofore accrued on such Serviced
Mortgage Loan Group.
SECTION 3.27. Certain Rights and Powers of the 0000 Xxxxxxxx
Non-Pooled Subordinate Noteholder and the 0000 Xxxxxxxx
Controlling Party.
(a) Notwithstanding anything in any other Section of this Agreement to
the contrary, but in all cases subject to Section 3.27(b), the applicable Master
Servicer and the applicable Special Servicer for the 0000 Xxxxxxxx Loan Group
will each be required to obtain the prior written consent, or the deemed
consent, in accordance with the 0000 Xxxxxxxx Intercreditor Agreement, of the
0000 Xxxxxxxx Controlling Party prior to taking any of the actions described in
Section 18(a) of the 0000 Xxxxxxxx Intercreditor Agreement; provided that (A) in
the event that the applicable Master Servicer or the applicable Special Servicer
determines in accordance with the Servicing Standard that immediate action is
necessary to protect the interests of the Certificateholders and the 0000
Xxxxxxxx Non-Pooled Subordinate Noteholder (as a collective whole), the
applicable Master Servicer or the applicable Special Servicer may take any such
action without waiting for the 0000 Xxxxxxxx Controlling Party's response; and
(B) the applicable Master Servicer or the applicable Special Servicer, as the
case may be, will not be obligated to seek approval from the 0000 Xxxxxxxx
Controlling Party for any actions to be taken by it if: (i) the applicable
Master Servicer or the applicable Special Servicer, as applicable, notified the
0000 Xxxxxxxx Controlling Party in writing of such actions that the applicable
Master Servicer or the applicable Special Servicer, as applicable, proposes to
take with respect to the workout or liquidation of the 0000 Xxxxxxxx Loan Group,
and (ii) for 60 days following the first such notice, the 0000 Xxxxxxxx
Controlling Party has objected to all of those proposed actions and has failed
to suggest any alternative actions that the applicable Master Servicer or the
applicable Special Servicer considers to be consistent with the Servicing
Standard.
In addition, notwithstanding any provision to the contrary contained
in this Agreement, but in any event subject to the terms of the 0000 Xxxxxxxx
Intercreditor Agreement, for so long as the 0000 Xxxxxxxx Non-Pooled Subordinate
Noteholder is the 0000 Xxxxxxxx Controlling Party, the 0000 Xxxxxxxx Controlling
Party (through the applicable Master Servicer or the applicable Special
Servicer) may communicate with, respond to requests from and deliver any
proposals to the related Borrower with respect to the items set forth in Section
18(a) of the 0000 Xxxxxxxx Intercreditor Agreement with respect to the 0000
Xxxxxxxx Loan Group, the 0000 Xxxxxxxx Mortgaged Property and the related
Borrower and the applicable Master Servicer or the applicable Special Servicer
may forward copies of such communications or proposals to the related Borrower
for its consideration. The applicable Master Servicer or the applicable Special
Servicer, as the case may be, shall follow the recommendations of the 0000
Xxxxxxxx Controlling Party with respect to such items, unless the applicable
Master Servicer or the applicable Special Servicer, as the case may be,
determines that following such recommendations would violate the standards set
forth in Section 3.27(b).
Upon reasonable request, the applicable Master Servicer or the
applicable Special Servicer shall provide the 0000 Xxxxxxxx Controlling Party
with any information in the possession of the applicable Master Servicer or the
applicable Special Servicer with respect to such matters, including, without
limitation, its reasons for determining to take a proposed action.
(b) Notwithstanding anything in this Agreement to the contrary, no
advice, direction or objection from or by the 0000 Xxxxxxxx Controlling Party,
as contemplated by Section 3.27(a) or any other provision of this Agreement, may
(and the applicable Master Servicer or the applicable Special Servicer, as the
case may be, shall ignore and act without regard to any such advice, direction
or objection that such Master Servicer or such Special Servicer, as the case may
be, has determined, in its reasonable, good faith judgment, would): (A) require
or cause such Master Servicer or such Special Servicer, as the case may be, to
(i) violate applicable law, any provision of this Agreement, or the 0000
Xxxxxxxx Intercreditor Agreement, including such Master Servicer's or such
Special Servicer's, as applicable, obligation to act in accordance with the
Servicing Standard, or (ii) act in a manner that is not in the best interests of
the holders of the 0000 Xxxxxxxx Loan Group (as a collective whole), (B) result
in an Adverse REMIC Event with respect to any REMIC
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Pool or an Adverse Grantor Trust Event with respect to any Grantor Trust Pool or
cause the arrangement evidenced by the 0000 Xxxxxxxx Intercreditor Agreement not
to be treated as a "grantor trust" for Federal income tax purposes or (C) expand
the scope of the applicable Master Servicer's or the applicable Special
Servicer's, as the case may be, responsibilities under this Agreement.
(c) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the 0000 Xxxxxxxx Non-Pooled Subordinate
Noteholder may have special relationships and interests that conflict with those
of Holders of one or more Classes of Certificates; (ii) 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder may act solely in its own interests; (iii) the 0000
Xxxxxxxx Non-Pooled Subordinate Noteholder does not have any duties to the
Holders of any Class of Certificates; and (iv) the 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder shall have no liability whatsoever for having so acted in
its own interests, and no Certificateholder may take any action whatsoever
against the 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder or any director,
officer, employee, agent or principal thereof for the 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder's having so acted in its own interests.
(d) The 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder or its
designee shall be entitled to receive a copy of any notice or report required to
be delivered (upon request or otherwise) by any party hereto to the Controlling
Class Representative or the 0000 Xxxxxxxx Controlling Party or the Trustee with
respect to the 0000 Xxxxxxxx Loan Group, other than with respect to any
determination of the Fair Value of a 0000 Xxxxxxxx Pooled Mortgage Loan pursuant
to Section 3.18. Any such party shall be permitted to require payment by the
0000 Xxxxxxxx Non-Pooled Subordinate Noteholder or such designee of a sum
sufficient to cover the reasonable costs and expenses of providing such copies
pursuant to this Section 3.27(d).
(e) Upon determining that a Servicing Transfer Event has occurred with
respect to the 0000 Xxxxxxxx Loan Group in accordance with the definition of
"Specially Serviced Mortgage Loan", the applicable Master Servicer shall
promptly notify the 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder or its
designee.
(f) The 0000 Xxxxxxxx Controlling Party shall have the sole right to
appoint and remove the applicable Special Servicer with or without cause in
accordance with Section 3.25.
(g) The 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder or its
designee shall be entitled to access to books, records, financial statements or
other documents of the related Borrower, shall be given the opportunity to
inspect the 0000 Xxxxxxxx Mortgaged Property or may request the applicable
Master Servicer or the applicable Special Servicer, as the case may be, to
encourage the related Borrower to reasonably cooperate to provide the 0000
Xxxxxxxx Non-Pooled Subordinate Noteholder access for its own inspection of any
0000 Xxxxxxxx Mortgaged Property or such books or records and to discuss the
business, financial and other conditions of the related Borrower with the
officers, accountants and other representatives of the related Borrower, in each
case in accordance with the terms of the 0000 Xxxxxxxx Intercreditor Agreement.
Each designee of each 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder shall be
entitled to access to or copies of records and information from the applicable
Master Servicer and/or the applicable Special Servicer for the 0000 Xxxxxxxx
Loan Group to the same extent and under the same conditions as the related 0000
Xxxxxxxx Non-Pooled Subordinate Noteholder is entitled to such access or copies
under Section 3.15 of this Agreement. In addition, the applicable Master
Servicer shall also deliver to the 0000 Xxxxxxxx Non-Pooled Subordinate
Noteholder copies of any other documents (other than with respect to any
determination of the Fair Value of a 0000 Xxxxxxxx Pooled Mortgage Loan pursuant
to Section 3.18), including without limitation, property inspection reports and
loan servicing statements, all at the sole cost of such 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder.
(h) The 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder shall have the
right to cure defaults under and to purchase the 0000 Xxxxxxxx Pooled Mortgage
Loan as provided in the related Mortgage Loan Group Intercreditor Agreement.
(i) The 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder shall be
entitled to appoint any Person to serve as a representative to exercise on
behalf of the 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder the rights and
powers granted to the 0000 Xxxxxxxx Non-Pooled Subordinate Noteholder hereunder
or under the related Mortgage
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Loan Group Intercreditor Agreement; provided, however, that shall such
appointment need not be recognized hereunder unless the 0000 Xxxxxxxx Non-Pooled
Subordinate Noteholder or such Person shall have delivered or caused to have
been delivered to the applicable Master Servicer and the applicable Special
Servicer a list of officers or employees of such Person with whom the applicable
Master Servicer and the applicable Special Servicer may deal (including their
names, titles, work addresses and facsimile numbers).
(j) Notwithstanding any provision of this Agreement to the contrary,
but subject to the Servicing Standard and the 0000 Xxxxxxxx Intercreditor
Agreement, in no event shall access to any records relating to the 0000 Xxxxxxxx
Loan Group be afforded, or information relating to the 0000 Xxxxxxxx Loan Group
be delivered, to a related Serviced Non-Pooled Subordinate Noteholder (or the
holder of a portion of the principal balance of the related Serviced Non-Pooled
Subordinate Loan) that constitutes the Borrower under the 0000 Xxxxxxxx Loan
Group or an Affiliate of such Borrower.
SECTION 3.28. Certain Rights and Powers of the Tuscany Plaza
Non-Pooled Subordinate Noteholder and the Tuscany Plaza
Controlling Party.
(a) Notwithstanding anything in any other Section of this Agreement to
the contrary, but in all cases subject to Section 3.28(b), the applicable Master
Servicer and the applicable Special Servicer for the Tuscany Plaza Loan Group
will each be required to obtain the prior written consent, or the deemed
consent, in accordance with the Tuscany Plaza Intercreditor Agreement, of the
Tuscany Plaza Controlling Party prior to taking any action that constitutes a
"Major Action" (as defined in the Tuscany Plaza Intercreditor Agreement);
provided that (A) in the event that the applicable Master Servicer or the
applicable Special Servicer determines in accordance with the Servicing Standard
that immediate action is necessary to protect the interests of the
Certificateholders and the Tuscany Plaza Non-Pooled Subordinate Noteholder (as a
collective whole), the applicable Master Servicer or the applicable Special
Servicer may take any such action without waiting for the Tuscany Plaza
Controlling Party's response; and (B) the applicable Master Servicer or the
applicable Special Servicer, as the case may be, will not be obligated to seek
approval from the Tuscany Plaza Controlling Party for any actions to be taken by
it if: (i) the applicable Master Servicer or the applicable Special Servicer, as
applicable, notified the Tuscany Plaza Controlling Party in writing of such
actions that the applicable Master Servicer or the applicable Special Servicer,
as applicable, proposes to take with respect to the workout or liquidation of
the Tuscany Plaza Loan Group, and (ii) for 30 days following the first such
notice, the Tuscany Plaza Controlling Party has objected to all of those
proposed actions and has failed to suggest any alternative actions that the
applicable Master Servicer or the applicable Special Servicer considers to be
consistent with the Servicing Standard.
In addition, the applicable Master Servicer and the applicable Special
Servicer for the Tuscany Plaza Loan Group will each be required to consult with
the Tuscany Plaza Non-Pooled Subordinate Noteholder on a non-binding basis with
respect to proposals to take any significant action with respect to the Tuscany
Plaza Loan Group or the Tuscany Plaza Mortgaged Property and consider
alternative actions recommended by the Tuscany Plaza Non-Pooled Subordinate
Noteholder (but may, in its discretion acting in accordance with the Servicing
Standard reject any advice, objection or recommendation by the Tuscany Plaza
Non-Pooled Subordinate Noteholder) in connection with (i) any adoption or
implementation of a business plan submitted by the related Borrower with respect
to the Tuscany Plaza Mortgaged Property, (ii) the execution or renewal of any
lease (if a lender approval is provided for in the related Mortgage Loan
Documents), (iii) the release to the related Borrower of any escrow held in
conjunction with the Tuscany Plaza Loan Group not expressly required by the
related Mortgage Loan Documents, (iv) material alterations on the Tuscany Plaza
Mortgaged Property, if approval by the lender is required by the related
Mortgage Loan Documents, or (v) the waiver of any notice provision related to
prepayment of all or any portion of the Tuscany Plaza Mortgage Loan. Such
consultation rights shall not be construed to limit any rights (if any) that the
Tuscany Plaza Non-Pooled Subordinate Noteholder may otherwise then have in
connection with an action that constitutes a "Major Action" (as defined in the
Tuscany Plaza Intercreditor Agreement).
The applicable Master Servicer or the applicable Special Servicer
shall provide the Tuscany Plaza Controlling Party with any information in the
possession of the applicable Master Servicer or the applicable Special Servicer
with respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
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Any such party shall be permitted to require payment of a sum sufficient to
cover the reasonable costs and expenses of providing such copies pursuant to
this paragraph.
(b) Notwithstanding anything in this Agreement to the contrary, no
advice, direction or objection from or by the Tuscany Plaza Controlling Party,
as contemplated by Section 3.28(a) or any other provision of this Agreement, may
(and the applicable Master Servicer or the applicable Special Servicer, as the
case may be, shall ignore and act without regard to any such advice, direction
or objection that such Master Servicer or such Special Servicer, as the case may
be, has determined, in its reasonable, good faith judgment, would) require or
cause such Master Servicer or such Special Servicer, as the case may be, to
violate any provision of this Agreement, the related Mortgage Loan Documents or
the Tuscany Plaza Intercreditor Agreement, including such Master Servicer's or
such Special Servicer's, as applicable, obligation to act in accordance with the
Servicing Standard.
(c) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Tuscany Plaza Non-Pooled Subordinate
Noteholder may have special relationships and interests that conflict with those
of Holders of one or more Classes of Certificates; (ii) Tuscany Plaza Non-Pooled
Subordinate Noteholder may act solely in its own interests; (iii) the Tuscany
Plaza Non-Pooled Subordinate Noteholder does not have any duties to the Holders
of any Class of Certificates; and (iv) the Tuscany Plaza Non-Pooled Subordinate
Noteholder shall have no liability whatsoever for having so acted in its own
interests, and no Certificateholder may take any action whatsoever against the
Tuscany Plaza Non-Pooled Subordinate Noteholder or any director, officer,
employee, agent or principal thereof for the Tuscany Plaza Non-Pooled
Subordinate Noteholder's having so acted in its own interests.
(d) The Tuscany Plaza Non-Pooled Subordinate Noteholder or its
designee shall be entitled to receive, upon request made to the appropriate
party, a copy of any notice or report required to be delivered (upon request or
otherwise) by any party hereto to the Controlling Class Representative or the
Tuscany Plaza Controlling Party or the Trustee with respect to the Tuscany Plaza
Loan Group, other than with respect to any determination of the Fair Value of a
Tuscany Plaza Pooled Mortgage Loan pursuant to Section 3.18. Any such party
shall be permitted to require payment by the Tuscany Plaza Non-Pooled
Subordinate Noteholder or such designee of a sum sufficient to cover the
reasonable costs and expenses of providing such copies pursuant to this Section
3.28(d).
(e) Upon determining that a Servicing Transfer Event has occurred with
respect to the Tuscany Plaza Loan Group in accordance with the definition of
"Specially Serviced Mortgage Loan", the applicable Master Servicer shall
promptly notify the Tuscany Plaza Non-Pooled Subordinate Noteholder or its
designee. Thereafter, the applicable Special Servicer shall prepare the asset
status report(s) contemplated by, and otherwise comply with, Section 18(d) of
the Tuscany Plaza Intercreditor Agreement.
(f) The Tuscany Plaza Controlling Party shall have the sole right to
appoint and remove the applicable Special Servicer with or without cause in
accordance with Section 3.25.
(g) The applicable Master Servicer shall also deliver to the Tuscany
Plaza Non-Pooled Subordinate Noteholder copies of (i) financial statements
delivered pursuant to the related Mortgage Loan Documents and (ii) in addition,
upon request, the applicable Master Servicer or the applicable Special Servicer
shall also deliver any other material documents relating to the Tuscany Plaza
Loan Group (other than with respect to any determination of the Fair Value of a
Tuscany Plaza Pooled Mortgage Loan pursuant to Section 3.18), including without
limitation, property inspection reports and loan servicing statements, all at
the sole cost of such Tuscany Plaza Non-Pooled Subordinate Noteholder.
(h) The Tuscany Plaza Non-Pooled Subordinate Noteholder shall have the
right to cure defaults under and to purchase the Tuscany Plaza Pooled Mortgage
Loan as provided in the related Mortgage Loan Group Intercreditor Agreement.
(i) The Tuscany Plaza Non-Pooled Subordinate Noteholder shall be
entitled to appoint any Person to serve as a representative to exercise on
behalf of the Tuscany Plaza Non-Pooled Subordinate Noteholder the rights and
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powers granted to the Tuscany Plaza Non-Pooled Subordinate Noteholder hereunder
or under the related Mortgage Loan Group Intercreditor Agreement; provided,
however, that shall such appointment need not be recognized hereunder unless the
Tuscany Plaza Non-Pooled Subordinate Noteholder or such Person shall have
delivered or caused to have been delivered to the applicable Master Servicer and
the applicable Special Servicer a list of officers or employees of such Person
with whom the applicable Master Servicer and the applicable Special Servicer may
deal (including their names, titles, work addresses and facsimile numbers).
(j) Notwithstanding any provision of this Agreement to the contrary,
but subject to the Servicing Standard and the Tuscany Plaza Intercreditor
Agreement, in no event shall access to any records relating to the Tuscany Plaza
Loan Group be afforded, or information relating to the Tuscany Plaza Loan Group
be delivered, to a related Serviced Non-Pooled Subordinate Noteholder (or the
holder of a portion of the principal balance of the related Serviced Non-Pooled
Subordinate Loan) that constitutes the Borrower under the Tuscany Plaza Loan
Group or an Affiliate of such Borrower.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator shall
apply amounts on deposit in the Distribution Account for the following purposes
and in the following order of priority, in each case to the extent of the
remaining portion of the Available Distribution Amount for such Distribution
Date:
(1) concurrently, (i) from the portion of the Available Distribution
Amount attributable to Loan Group 2, to make distributions of interest to
the Holders of the Class A-1A Certificates up to an amount equal to all
Distributable Certificate Interest in respect of such Class for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any, (ii) from the portion of the Available
Distribution Amount attributable to Loan Group 1, to make distributions of
interest to the Holders of the Class X-0, X-0, X-0, X-XX and A-4
Certificates, up to an amount equal to, and pro rata as among such Holders
such Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any, and (iii)
from the remaining portion of the Available Distribution Amount for such
Distribution Date, to make distributions of interest to the Holders of the
Class X Certificates, equal to, and pro rata as among such Holders such
Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any; provided,
however, that if the Available Distribution Amount for such Distribution
Date, or the applicable portion of the Available Distribution Amount
attributable to either Loan Group, is insufficient to pay in full the total
amount of interest to be distributed with respect to any of such Classes as
described above, then the Available Distribution Amount will be allocated
among all such Classes up to and pro rata in accordance with, their
respective interest entitlements, without regard to Loan Group;
(2) to make distributions of principal to the Holders of the
respective Classes of Class A Senior REMIC III Certificates, allocable as
among such Holders of such Classes as provided below, up to an amount (not
to exceed the aggregate Class Principal Balance of such Classes outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(3) to make distributions to the Holders of the respective Classes of
Class A Senior REMIC III Certificates, up to an amount equal to, pro rata
as among such Holders of such Classes in accordance with, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to each such Class pursuant to Section 4.04(a)
and not previously reimbursed.
(4) to make distributions of interest to the Holders of the Class A-M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(5) after the Class Principal Balances of the Class A Senior REMIC III
Certificates have been reduced to zero, to make distributions of principal
to the Holders of the Class A-M Certificates, up to an amount (not to
exceed the Class Principal Balance of such Class of Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of the
Class A Senior REMIC III Certificates pursuant to clause (2) above);
(6) to make distributions to the Holders of the Class A-M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and not
previously reimbursed;
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(7) to make distributions of interest to the Holders of the Class A-J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(8) after the Class Principal Balance of the Class A-M Certificates
has been reduced to zero, to make distributions of principal to the Holders
of the Class A-J Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(9) to make distributions to the Holders of the Class A-J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and not
previously reimbursed;
(10) to make distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(11) after the Class Principal Balance of the Class A-J Certificates
has been reduced to zero, to make distributions of principal to the Holders
of the Class B Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(12) to make distributions to the Holders of the Class B Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(13) to make distributions of interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(14) after the Class Principal Balance of the Class B Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class C Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(15) to make distributions to the Holders of the Class C Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(16) to make distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(17) after the Class Principal Balance of the Class C Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class D Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to
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the entire Principal Distribution Amount for such Distribution Date (net of
any portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(18) to make distributions to the Holders of the Class D Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(19) to make distributions of interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(20) after the Class Principal Balance of the Class D Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class E Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(21) to make distributions to the Holders of the Class E Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(22) to make distributions of interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(23) after the Class Principal Balance of the Class E Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class F Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(24) to make distributions to the Holders of the Class F Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(25) to make distributions of interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(26) after the Class Principal Balance of the Class F Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class G Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(27) to make distributions to the Holders of the Class G Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
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(28) to make distributions of interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(29) after the Class Principal Balance of the Class G Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class H Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(30) to make distributions to the Holders of the Class H Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(31) to make distributions of interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(32) after the Class Principal Balance of the Class H Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class J Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(33) to make distributions to the Holders of the Class J Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(34) to make distributions of interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(35) after the Class Principal Balance of the Class J Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class K Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(36) to make distributions to the Holders of the Class K Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(37) to make distributions of interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(38) after the Class Principal Balance of the Class K Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class L Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to
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the entire Principal Distribution Amount for such Distribution Date (net of
any portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(39) to make distributions to the Holders of the Class L Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(40) to make distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(41) after the Class Principal Balance of the Class L Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class M Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(42) to make distributions to the Holders of the Class M Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(43) to make distributions of interest to the Holders of the Class N
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(44) after the Class Principal Balance of the Class M Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class N Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(45) to make distributions to the Holders of the Class N Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(46) to make distributions of interest to the Holders of the Class O
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(47) after the Class Principal Balance of the Class N Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class O Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(48) to make distributions to the Holders of the Class O Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
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(49) to make distributions of interest to the Holders of the Class P
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(50) after the Class Principal Balance of the Class O Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class P Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(51) to make distributions to the Holders of the Class P Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
and
(52) to make distributions to the Holders of the Class R Certificates,
up to an amount equal to the excess, if any, of (A) the Available
Distribution Amount for such Distribution Date, over (B) the aggregate
distributions made in respect of the other Classes of Certificates on such
Distribution Date pursuant to the prior clauses of this Section 4.01(a);
Any distributions of interest made with respect to the Class X
Certificates on any Distribution Date pursuant to clause (1) above shall be
deemed to have been allocated among the respective REMIC III Components of the
Class X Certificates on a pro rata basis in accordance with the respective
amounts of Accrued Component Interest for such REMIC III Components for such
Distribution Date.
On each Distribution Date prior to the earlier of (a) any Class A
Principal Distribution Cross-Over Date and (b) the Final Distribution Date, the
Certificate Administrator shall allocate the aggregate distributions of
principal on the Class A Senior REMIC III Certificates contemplated by clause
(2) above, concurrently, (A) to make distributions of principal to the Holders
of the Class A-1A Certificates in an amount equal to the lesser of (i) the
portion of the Principal Distribution Amount for such Distribution Date that is
attributable to Loan Group 2 and, after the aggregate Class Principal Balance of
the Class A-1, Class A-2, Class A-3, Class A-AB and Class A-4 Certificates has
been reduced to zero, the portion of the Principal Distribution Amount for such
Distribution Date that is attributable to Loan Group 1 (net of any portion
thereof that is distributable on such Distribution Date to the Holders of the
Class A-1, Class A-2, Class A-3, Class A-AB and/or Class A-4 Certificates) and
(ii) the Class Principal Balance of the Class A-1A Certificates immediately
prior to such Distribution Date; and (B) to the Holders of the Class A-1, Class
A-2, Class A-3, Class A-AB and Class A-4 Certificates collectively (to be
further allocated as among the Holders of such Classes in the manner set forth
below) in an amount equal to the lesser of (i) the portion of the Principal
Distribution Amount for such Distribution Date that is attributable to Loan
Group 1 and, after the Class Principal Balance of the Class A-1A Certificates
has been reduced to zero, the portion of the Principal Distribution Amount for
such Distribution Date that is attributable to Loan Group 2 (net of any portion
thereof that is distributable on such Distribution Date to the Holders of the
Class A-1A Certificates) and (ii) the aggregate Class Principal Balance of the
Class A-1, Class A-2, Class A-3, Class A-AB and Class A-4 Certificates
immediately prior to such Distribution Date.
The portion of the Principal Distribution Amount that is allocated to
Holders of the Class A-1, Class A-2, Class A-3, Class A-AB and Class A-4
Certificates collectively pursuant to clause (B) of the immediately preceding
paragraph (such portion, the "Certificate Group 1 Principal Distribution
Amount") on each distribution date will be further allocated among those holders
in the following amounts and order of priority (in each case to the extent of
the remaining unallocated portion of such aggregate distributions of principal):
(A) first, to the Holders of the Class A-AB Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, and (2) an amount
sufficient to
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reduce the Class Principal Balance of the Class A-AB Certificates to the
Class A-AB Planned Principal Balance for such Distribution Date;
(B) second, to the Holders of the Class A-1 Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to reduce the Class Principal Balance of the
Class A-AB Certificates to the Class A-AB Planned Principal Balance for
such Distribution Date as described in the immediately preceding clause
(A), and (2) the Class Principal Balance of the Class A-1 Certificates
immediately prior to such Distribution Date;
(C) third, to the Holders of the Class A-2 Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to reduce the Class Principal Balance of the
Class A-AB Certificates to the Class A-AB Planned Principal Balance for
such Distribution Date as described in the immediately preceding clause (A)
and/or any portion of such amount that is allocable to the Class A-1
Certificates as described in the immediately preceding clause (B) and (2)
the Class Principal Balance of the Class A-2 Certificates immediately prior
to such Distribution Date;
(D) fourth, to the Holders of the Class A-3 Certificates, an
amount equal to the lesser of (1) the Certificate Group 1 Principal
Distribution Amount for such Distribution Date, reduced by any portion of
such amount that is allocable to reduce the Class Principal Balance of the
Class A-AB Certificates to the Class A-AB Planned Principal Balance for
such Distribution Date as described in the immediately preceding clause (A)
and/or any portion of such amount that is allocable to the Class A-1 and/or
Class A-2 Certificates as described in the immediately preceding clauses
(B) and (C) and (2) the Class Principal Balance of the Class A-3
Certificates immediately prior to such Distribution Date;
(E) fifth, to the Holders of the Class A-AB Certificates, an
amount (in addition to the amount otherwise allocated and distributable to
them as set forth in clause (A) above) equal to the lesser of (1) the
Certificate Group 1 Principal Distribution Amount for such Distribution
Date, reduced by any portion of such amount that is allocable to reduce the
Class Principal Balance of the Class A-AB Certificates to the Class A-AB
Planned Principal Balance for such Distribution Date as described in the
immediately preceding clause (A) and/or any portion of such amount that is
allocable to the Class A-1, Class A-2 and/or Class A-3 Certificates as
described in the immediately preceding clauses (B), (C) and (D) and (2) the
Class Principal Balance of the Class A-AB Certificates immediately after
the allocation described in clause (A) above; and
(F) finally, after the Class Principal Balances of the Class A-1,
Class A-2, Class A-3 and Class A-AB Certificates have been reduced to zero,
to the Holders of the Class A-4 Certificates, an amount equal to the lesser
of (1) the Certificate Group 1 Principal Distribution Amount for such
Distribution Date, reduced by any portion of such amount that is allocable
to reduce the Class Principal Balance of the Class A-AB Certificates to the
Class A-AB Planned Principal Balance for such Distribution Date as
described in the immediately preceding clause (A) and/or any portion of
such amount that is allocable to the Class A-1, Class A-2, Class A-3 and/or
Class A-AB Certificates as described in the immediately preceding clauses
(B), (C), (D) and (E) and (2) the aggregate of the Class Principal Balances
of the Class A-4 Certificates immediately prior to such Distribution Date.
On each Distribution Date coinciding with or following the Class A
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the Certificate Administrator shall allocate the aggregate
distributions of principal on the Class A Senior REMIC III Certificates
contemplated by clause (2) of this Section 4.01(a) to the Holders of the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A Certificates on
a pro rata basis, without regard to Loan Group, in accordance with their
respective Class Principal Balances immediately prior to such Distribution Date,
in each case up to the Class Principal Balance of such Class.
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(b) Funds on deposit in the Distribution Account on each Distribution
Date that represent Prepayment Premiums or Yield Maintenance Charges Received by
the Trust with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan
during the related Collection Period, in each case net of any Liquidation Fees
payable therefrom, shall be distributable as follows: (A) on each Distribution
Date on which any Prepayment Premium or Yield Maintenance Charges Received by
the Trust on any Pooled Mortgage Loan in Loan Group 1, the Certificate
Administrator shall withdraw from the Distribution Account and distribute to the
Holders of each Class of 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
and Class H Certificates to whom the Certificate Administrator is to make a
distribution in respect of principal pursuant to Section 4.01(a), an amount
equal to the product of (i) the full amount of the funds representing each
respective Prepayment Premium or Yield Maintenance Charge Received by the Trust
with respect to such Pooled Mortgage Loan or REO Pooled Mortgage Loan in Group 1
during the related Collection Period, in each case net of any Liquidation Fees
payable therefrom, multiplied by (ii) a fraction (which in no event may be
greater than 1.0 or less than 0.0), the numerator of which is equal to the
excess, if any, of the Pass-Through Rate for such Class of Certificates for the
Interest Accrual Period related to such Distribution Date over the relevant
Discount Rate, and the denominator of which is equal to the excess, if any, of
the Mortgage Rate for such Pooled Mortgage Loan or REO Pooled Mortgage Loan, as
the case may be, over the relevant Discount Rate (provided that if the
denominator of such fraction is equal to zero, such fraction shall be deemed to
equal 0.0), and further multiplied by (iii) a fraction (which in no event may be
greater than 1.0), the numerator of which is equal to the amount of principal to
be distributed on such Class of Principal Balance Certificates on such
Distribution Date pursuant to Section 4.01(a) and the denominator of which is
equal to the portion of the Principal Distribution Amount for such Distribution
Date that is attributable to Loan Group 1; and (B) on each Distribution Date on
which any Prepayment Premium or Yield Maintenance Charges Received by the Trust
on any Pooled Mortgage Loan in Loan Group 2, the Certificate Administrator shall
withdraw from the Distribution Account and distribute to the Holders of the
Class A-1A Certificates an amount equal to the product of (i) the full amount of
the funds representing each respective Prepayment Premium or Yield Maintenance
Charge Received by the Trust with respect to such Pooled Mortgage Loan or REO
Pooled Mortgage Loan in Loan Group 2 during the related Collection Period, in
each case net of any Liquidation Fees payable therefrom, multiplied by (ii) a
fraction (which in no event may be greater than 1.0 or less than 0.0), the
numerator of which is equal to the excess, if any, of the Pass-Through Rate for
such Class of Certificates for the Interest Accrual Period related to such
Distribution Date over the relevant Discount Rate, and the denominator of which
is equal to the excess, if any, of the Mortgage Rate for such Pooled Mortgage
Loan or REO Pooled Mortgage Loan, as the case may be, over the relevant Discount
Rate (provided that if the denominator of such fraction is equal to zero, such
fraction shall be deemed to equal 0.0), and further multiplied by (iii) a
fraction (which in no event may be greater than 1.0), the numerator of which is
equal to the amount of principal to be distributed on such Class of Principal
Balance Certificates on such Distribution Date pursuant to Section 4.01(a) and
the denominator of which is equal to the portion of the Principal Distribution
Amount for such Distribution Date that is attributable to Loan Group 2. In the
case of either the preceding clause (A) or the preceding clause (B), the
Certificate Administrator shall withdraw from the Distribution Account any funds
on deposit in the Distribution Account that represent the remaining portion of
such Prepayment Premium or Yield Maintenance Charge and distribute 100% of such
funds to the Holders of the Class X Certificates. Any funds distributed on a
Class of Certificates in respect of any Prepayment Premium or Yield Maintenance
Charge pursuant to this Section 4.01(c) shall constitute an "Additional Yield
Amount" for such Class.
For purposes of the immediately preceding paragraph, the relevant
"Discount Rate" in connection with any Prepayment Premium or Yield Maintenance
Charge collected on any prepaid Pooled Mortgage Loan or REO Pooled Mortgage Loan
and distributable on any Distribution Date shall be a rate per annum equal to
(i) if a discount rate was used in the calculation of the applicable Prepayment
Premium or Yield Maintenance Charge pursuant to the terms of the relevant Pooled
Mortgage Loan or REO Pooled Mortgage Loan, as the case may be, such discount
rate (as reported by the applicable Master Servicer), converted (if necessary)
to a monthly equivalent yield, or (ii) if a discount rate was not used in the
calculation of the applicable Prepayment Premium or Yield Maintenance Charge
pursuant to the terms of the relevant Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, the yield calculated by the linear
interpolation of the yields (as reported under the heading "U.S. Government
Securities/Treasury Constant Maturities" in Federal Reserve Statistical Release
H.15 (519) published by the Federal Reserve Board for the week most recently
ended before the date of the relevant prepayment (or deemed prepayment) of U.S.
Treasury constant maturities with a maturity
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date, one longer and one shorter, most nearly approximating the related Maturity
Date (or, in the case of a Pooled Mortgage Loan that is, or an REO Pooled
Mortgage Loan that was, an ARD Mortgage Loan, the related Anticipated Repayment
Date), such interpolated yield converted to a monthly equivalent yield. If
Federal Reserve Statistical Release H.15 (519) is no longer published, the
Certificate Administrator shall select a comparable publication as the source of
the applicable yields of U.S. Treasury constant maturities.
Any Additional Yield Amount distributed in respect of the Class X
Certificates on any Distribution Date shall be deemed to have been distributed
in respect of the respective REMIC III Components of the Class X Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such REMIC III Components were reduced on such
Distribution Date by deemed distributions of principal pursuant to Section
4.01(i).
(c) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account any amounts then on deposit in the Class
V Sub-Account of the Distribution Account that represent Post-ARD Additional
Interest collected or deemed collected in respect of the Pooled Mortgage Loans
that are ARD Mortgage Loans (or any successor REO Mortgage Loans with respect
thereto) during the related Collection Period and shall distribute such amounts
to the Holders of the Class V Certificates.
(d) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class of Certificates on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Certificate Administrator with wiring instructions no less
than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Principal Balance
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate
pursuant to Section 4.04(a)) will be made in a like manner, but only upon
presentation and surrender of such Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution. Prior to any termination of the Trust Fund pursuant
to Section 9.01, any distribution that is to be made with respect to a
Certificate in reimbursement of a Realized Loss or Additional Trust Fund Expense
previously allocated thereto, which reimbursement is to occur after the date on
which such Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Certificateholder that
surrendered such Certificate as such address last appeared in the Certificate
Register or to any other address of which the Certificate Administrator was
subsequently notified in writing. If such check is returned to the Certificate
Administrator, then the Certificate Administrator, directly or through an agent,
shall take such reasonable steps to contact the related Holder and deliver such
check as it shall deem appropriate. Any funds in respect of a check returned to
the Certificate Administrator shall be set aside by the Certificate
Administrator and held uninvested in trust and credited to the account of the
appropriate Holder. The costs and expenses of locating the appropriate Holder
and holding such funds shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust hereunder. If the
Certificate Administrator has not, after having taken such reasonable steps,
located the related Holder by the second anniversary of the initial sending of a
check, the Certificate Administrator shall, subject to applicable law,
distribute the unclaimed funds to the Class R Certificateholders.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Administrator, the Certificate Registrar, the Depositor, the Special
Servicer or the Master Servicers shall have any responsibility therefor except
as otherwise
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provided by this Agreement or applicable law. The Certificate Administrator and
the Depositor shall perform their respective obligations under each of the
Letter of Representations among the Depositor, the Certificate Administrator and
the initial Depository dated as of the Closing Date and pertaining to the
Book-Entry Certificates, a copy of which Letters of Representation are attached
hereto as Exhibit B.
(f) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund with respect to the Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates with respect to amounts properly previously
distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator receives written notification of or expects that the
final distribution with respect to any Class of Certificates (determined, in the
case of a Class of Principal Balance Certificates, without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates pursuant to Section
4.04(a)) will be made on the next Distribution Date, the Certificate
Administrator shall, no later than the second Business Day prior to such
Distribution Date, mail to each Holder of record of such Class of Certificates
on such date a notice to the effect that:
(i) the Certificate Administrator expects that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such other
location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, then the Certificate Administrator, directly
or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such non-tendering Certificateholders following the
first anniversary of the delivery of such second notice thereto shall be paid
out of such funds. No interest shall accrue or be payable to any former Holder
on any amount held in trust pursuant to this paragraph. If all of the
Certificates as to which notice has been given pursuant to this Section 4.01(g)
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Certificate Administrator shall, subject
to applicable law, distribute to the Class R Certificateholders all unclaimed
funds and other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Certificate Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Certificate Administrator reasonably believes are applicable under the
Code. The consent of Certificateholders shall not be required for such
withholding. If the Certificate Administrator does withhold any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Certificate
Administrator shall indicate the amount withheld to such Certificateholders.
(i) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a) or Section 4.01(b) shall be deemed to have
first been distributed from REMIC II to REMIC III with respect to the
Corresponding REMIC II Regular Interest for such Class of Principal Balance
Certificates; and all distributions made with respect to the Class X
Certificates on each
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Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), and allocable
to any particular REMIC III Component of such Class of Principal Balance
Certificates, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of the Corresponding REMIC II Regular Interest for such
REMIC III Component. In each case, if such distribution on any such Class of
Certificates was a distribution of accrued interest, of principal, of additional
interest (in the form of one or more Additional Yield Amounts) or in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously allocated to such Class of Principal Balance Certificates, then the
corresponding distribution deemed to be made on a REMIC II Regular Interest
pursuant to the preceding sentence (and, if applicable the next paragraph) shall
be deemed to also be, respectively, a distribution of accrued interest, of
principal, of additional interest (in the form of one or more Additional Yield
Amounts) or in reimbursement of any Realized Losses and Additional Trust Fund
Expenses previously allocated to REMIC III in respect of such REMIC II Regular
Interest.
If two or more REMIC II Regular Interests are all Corresponding REMIC
II Regular Interests with respect to the same Class of Principal Balance
Certificates, then (i) deemed distributions of accrued interest made on such
REMIC II Regular Interests shall be allocated among such REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts of
accrued interest deemed payable on each such REMIC II Regular Interest for the
subject Distribution Date; (ii) deemed distributions of principal made on such
REMIC II Regular Interests shall be allocated sequentially to such REMIC II
Regular Interests in ascending order of the numerical portion of their
alphanumeric designations that follows the portion thereof that is the same as
the alphabetic or alphanumeric designation of the Class of Principal Balance
Certificates for which such REMIC II Regular Interests constitute Corresponding
REMIC II Regular Interests, in each case until the Uncertificated Principal
Balance of such REMIC II Regular Interest is reduced to zero; (iii) deemed
distributions of additional interest (in the form of one or more Additional
Yield Amounts) made on such REMIC II Regular Interests shall be allocated among
such REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts of principal allocated to each such REMIC II Regular Interest
pursuant to the immediately preceding clause (ii) for the subject Distribution
Date; and (iv) deemed distributions in reimbursement of previously allocated
Realized Losses and Additional Trust Fund Expenses made on such REMIC II Regular
Interests, shall be allocated among such REMIC II Regular Interests on a pro
rata basis in accordance with the respective amounts deemed reimbursable with
respect thereto for the subject Distribution Date. For the avoidance of doubt,
this paragraph shall not apply to the issuance of the Series 2006-PWR12
Commercial Mortgage Pass-Through Certificates.
The actual distributions made by the Certificate Administrator on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been so made
from the amounts deemed distributed with respect to the REMIC II Regular
Interests on such Distribution Date pursuant to this Section 4.01(i).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(i), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
(j) On each Distribution Date, including the Final Distribution Date,
the Available Distribution Amount for such date shall be deemed to have first
been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, in each case to the extent of the remaining portions of such funds,
for the following purposes and in the following order of priority:
(i) as deemed distributions of interest with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest with respect to
each REMIC I Regular Interest for such Distribution Date and, to the extent
not previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each REMIC I Regular Interest, the portion of the
Principal Distribution Amount for such Distribution Date attributable to
the related Pooled Mortgage Loan(s) or REO Pooled Mortgage Loan(s); and
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(iii) as deemed distributions with respect to all the REMIC I
Regular Interests, up to an amount equal to, pro rata in accordance with,
and in reimbursement of, any Realized Losses and Additional Trust Fund
Expenses previously allocated to each REMIC I Regular Interest (with
compounded interest).
The portion of each Prepayment Premium and Yield Maintenance Charge
that is distributed to any Class of REMIC III Certificates on any Distribution
Date shall, in each case, be deemed to have been distributed from REMIC I to
REMIC II in respect of the REMIC I Regular Interest corresponding to the prepaid
Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may be, in respect
of which such Prepayment Premium or Yield Maintenance Charge was received or
deemed received.
The actual distributions made by the Certificate Administrator on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been so made
from the amounts deemed distributed with respect to the REMIC I Regular
Interests on such Distribution Date pursuant to this Section 4.01(j).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.01(j), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting.
(a) Certificate Administrator Reports and Information. Based solely on
information provided to the Certificate Administrator by the Master Servicers
pursuant to Sections 3.12, 4.02(c) and 4.02(f), the Certificate Administrator
shall prepare (or cause to be prepared) and, on each Distribution Date, provide
or make available electronically (or, upon request by a Privileged Person who is
a Certificateholder or Certificate Owner or by any Privileged Person who cannot
receive a copy electronically, by first class mail) to each Privileged Person a
statement substantially in the form of, and containing the information set forth
in, Exhibit D-1 hereto and in any event containing the information set forth on
Exhibit D-2 (the "Certificate Administrator Report"), detailing the
distributions on such Distribution Date and the performance, both in the
aggregate and individually to the extent available, of the Pooled Mortgage Loans
and the Mortgaged Properties; provided that the Certificate Administrator need
not deliver to the Depositor, the Master Servicers, the Special Servicer, the
Underwriters, the Rating Agencies or the Controlling Class Representative any
Certificate Administrator Report that has been made available to such Person via
the Certificate Administrator's internet website as provided below; and
provided, further, that the Certificate Administrator has no affirmative
obligation to discover the identities of Certificate Owners and need only react
to Persons claiming to be Certificate Owners in accordance with Section 5.06;
and provided, further, that during any period that reports are required to be
filed with the Commission with respect to the Trust pursuant to Section 15(d) of
the Exchange Act, each recipient of the Certificate Administrator Report shall
be deemed to have agreed to keep confidential the information therein until such
Certificate Administrator Report is filed with the Commission. In any event,
each Certificate Administrator Report shall present, in addition to the other
information contemplated by Exhibit D-1 and Exhibit D-2 hereto, the respective
portions of the Available Distribution Amount for each Distribution Date that
are attributable to each Loan Group, the respective portions of the Principal
Distribution Amount for each Distribution Date that are attributable to each
Loan Group, the aggregate unpaid principal balance of each Loan Group
outstanding as of the close of business on the related Determination Date and
the aggregate Stated Principal Balance of each Loan Group outstanding
immediately before and immediately after such Distribution Date.
On each Distribution Date, the Certificate Administrator shall provide
or make available electronically (or, upon request by a Privileged Person who is
a Certificateholder or Certificate Owner or by any Privileged Person who cannot
receive a copy electronically, by first class mail) to each Privileged Person
each file and report comprising the CMSA Investor Reporting Package (other than
the CMSA Special Servicer Loan File), to the extent received by the Certificate
Administrator since the prior Distribution Date (or, in the case of the initial
Distribution Date, since the Closing Date); provided that during any period that
reports are required to be filed with the Commission with respect to the Trust
pursuant to Section 15(d) of the Exchange Act, each recipient of such files and
reports shall be deemed to have agreed to keep confidential the information in
any such file or report until such particular file or report is filed with the
Commission. Such files and reports shall be so provided or made available such
that: (i) in the case of the CMSA Loan
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Setup File, the CMSA Loan Periodic Update File, the CMSA Financial File, the
CMSA Property File, the CMSA Loan Level Reserve/LOC Report and the CMSA
Reconciliation of Funds Report, such file or report presents information for all
of the Pooled Mortgage Loans and/or Mortgaged Properties (as applicable) without
segregation according to the identities of the Master Servicers; and (ii) in the
case of the CMSA Delinquent Loan Status Report, the CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, the CMSA Historical Liquidation
Report, the CMSA REO Status Report, the CMSA Servicer Watch List, the CMSA
Comparative Financial Status Report, the CMSA Operating Statement Analysis
Report, the CMSA NOI Adjustment Worksheet, the CMSA Special Servicer Loan File
and the Realized Loss Report, such report presents information separately tabbed
for the Pooled Mortgage Loans and/or Mortgaged Properties or REO Properties (as
applicable) for which each respective Master Servicer is the applicable Master
Servicer. Each CMSA Loan Setup File and CMSA Loan Periodic Update File shall
indicate (based solely on the Pooled Mortgage Loan Schedule) whether each
related Pooled Mortgage Loan presented therein is contained in Loan Group 1 or
Loan Group 2.
The Certificate Administrator shall have no obligation to provide the
information or reports described in this Section 4.02(a) until it has received
the requisite information or reports from the Master Servicers provided for
herein, and the Certificate Administrator shall not be in default hereunder due
to a delay in providing such information and reports caused by the failure of a
Master Servicer or a Special Servicer to timely deliver any information or
reports hereunder. None of the Master Servicers, the Special Servicers or the
Certificate Administrator shall be responsible for the accuracy or completeness
of any information supplied to it by a Borrower, each other or a third party,
and accepted by it in good faith, that is included in any reports, statements,
materials or information prepared or provided by either Master Servicer, any
Special Servicer or the Certificate Administrator, as applicable. None of the
Certificate Administrator, the Master Servicers or the Special Servicers shall
have any obligation to verify the accuracy or completeness of any information
provided by a Borrower, a third party or each other.
The Certificate Administrator shall make available to the general
public each month the related Certificate Administrator Report via its internet
website initially located at "xxx.xxxxxxx.xxx". In addition, the Certificate
Administrator shall make available each month, via its internet website on a
restricted basis solely to Privileged Persons, (i) the Unrestricted Servicer
Reports, (ii) the CMSA Bond Level File and the CMSA Collateral Summary File, and
(iii) as a convenience to interested persons (and not in furtherance of the
distribution thereof under the securities laws), the Prospectus, this Agreement
and each of the Pooled Mortgage Loan Purchase Agreements (including, in each
case, all schedules and exhibits thereto). Upon notification by the Depositor
that the Underwriters have sold the Non-Registered Certificates to unaffiliated
third parties, the Certificate Administrator shall remove the restriction
provided for in the preceding sentence and shall make such reports and documents
available to any interested person. The Certificate Administrator shall also
make available each month, on a restricted basis to any Privileged Person via
its internet website, (i) the Restricted Servicer Reports, and (ii) any other
report at the direction of the Depositor. During any period that reports are
required to be filed with the Commission with respect to the Trust pursuant to
Section 15(d) of the Exchange Act, each recipient of information regarding the
Trust on the Certificate Administrator's internet website will be deemed to have
agreed to keep confidential such information until such reports are filed with
the Commission, and to the extent such information is presented on the
Certificate Administrator's internet website, such website will bear a legend to
the following effect: "No recipient shall use or disclose the information
contained in this statement/report/file in any manner which could result in a
violation of any provision of the Securities Act of 1933 or the Securities
Exchange Act of 1934 or would require registration of any Non-Registered
Certificates pursuant to Section 5 of the Securities Act of 1933."
The Certificate Administrator makes no representations or warranties
as to the accuracy or completeness of any report, document or other information
made available on its internet website and assumes no responsibility therefor.
In addition, the Certificate Administrator may disclaim responsibility for any
information distributed by the Certificate Administrator for which it is not the
original source.
In connection with providing access to the Certificate Administrator's
internet website, the Certificate Administrator may require registration and the
acceptance of a disclaimer (provided that such website provides thereon
electronic means of fulfilling such registration and acceptance for purposes of
obtaining access to Unrestricted Servicer Reports). The Certificate
Administrator shall not be liable for the dissemination of information in
accordance herewith. Questions regarding the Certificate Administrator's
internet website can be directed to the Certificate Administrator's
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CMBS customer service desk at (000) 000-0000 or such other number as the
Certificate Administrator may hereinafter specify.
The Certificate Administrator shall be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided by
third parties for purposes of preparing the Certificate Administrator Report and
may affix thereto any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(b) Certain Tax-Related Reporting to Certificateholders by the
Certificate Administrator. Within a reasonable period of time after the end of
each calendar year, the Certificate Administrator shall prepare, or cause to be
prepared, and mail to each Person who at any time during the calendar year was a
Certificateholder (i) a statement containing the aggregate information set forth
on page 2 of Exhibit D hereto for such calendar year or applicable portion
thereof during which such person was a Certificateholder and (ii) such other
customary information as the Certificate Administrator deems necessary or
desirable for Certificateholders to prepare their federal, state and local
income tax returns, including the amount of original issue discount accrued on
the Certificates, if applicable. The obligations of the Certificate
Administrator in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Certificate Administrator pursuant to any requirements of the
Code. As soon as practicable following the request of any Certificateholder in
writing, the Certificate Administrator shall furnish to such Certificateholder
such information regarding the Pooled Mortgage Loans and the Mortgaged
Properties as such Certificateholder may reasonably request and, as has been
furnished to, or may otherwise be in the possession of, the Certificate
Administrator. Each of the Master Servicers and the Special Servicers shall
promptly provide to the Depositor and the Certificate Administrator such
information regarding, in the case of a Master Servicer, the Mortgage Loans and
the Mortgaged Properties for which it is the applicable Master Servicer and, in
the case of a Special Servicer, the Specially Serviced Mortgage Loans and the
Administered REO Properties for which it is the applicable Special Servicer, as
the case may be, in any event as such party may reasonably request and that has
been furnished to, or may otherwise be in the possession of, such Master
Servicer or such Special Servicer, as the case may be.
(c) CMSA Loan Periodic Update Files. Not later than 9:00 a.m. (New
York City time) on the third Business Day following each Determination Date
(which is also the second Business Day preceding the related Distribution Date),
the Servicer Report Administrator shall deliver to the Certificate Administrator
the CMSA Loan Periodic Update File (which shall be accompanied by a CMSA Advance
Recoverability Report), combining information with respect to the Pooled
Mortgage Loans as to which it is the applicable Master Servicer and information
delivered to the Servicer Report Administrator by the other Master Servicer with
respect to the Pooled Mortgage Loans as to which such other Master Servicer is
the applicable Master Servicer (as described in the immediately succeeding
sentence), without segregation according to the identities of the Master
Servicers, and reflecting information as of the close of business on such
Determination Date (or, in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, as of such other date as of which such information is provided pursuant to
the terms of the related Non-Trust Servicing Agreement). Not later than 9:00
a.m. (New York City time) on the second Business Day following each
Determination Date, the Master Servicer that is not the Servicer Report
Administrator shall deliver to the Servicer Report Administrator the CMSA Loan
Periodic Update File (which shall be accompanied by a CMSA Advance
Recoverability Report) with respect to the Pooled Mortgage Loans as to which it
is the applicable Master Servicer, reflecting information as of the close of
business on such Determination Date (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, as of such other date as of which such information is
provided pursuant to the terms of the related Non-Trust Servicing Agreement).
The CMSA Loan Periodic Update File delivered by each Master Servicer as
described above shall be in an electronic format that is mutually acceptable to
the two Master Servicers and the Certificate Administrator. Each CMSA Loan
Periodic Update File and any written information supplemental thereto shall
include such information with respect to the subject Pooled Mortgage Loans that
is reasonably required by the Certificate Administrator for purposes of making
the calculations and preparing the reports for which the Certificate
Administrator is responsible pursuant to Section 4.01, this Section 4.02,
Section 4.04 or any other section of this Agreement, as set forth in reasonable
written specifications or guidelines issued by the Certificate Administrator
from time to time. Such information may be delivered to the Certificate
Administrator by the Servicer Report Administrator and, if applicable, to the
Servicer Report Administrator by the other Master Servicer by electronic mail or
in such electronic or other form as may be reasonably acceptable to the two
Master Servicers and the
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Certificate Administrator. Each CMSA Loan Periodic Update File shall indicate
(based solely on the Pooled Mortgage Loan Schedule) whether each related Pooled
Mortgage Loan presented therein is contained in Loan Group 1 or Loan Group 2.
Notwithstanding the foregoing, the parties agree that the CMSA Loan
Periodic Update File required to be delivered by each Master Servicer in July
2006 will be based solely upon information generated from actual collections
received by such Master Servicer (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the related Non-Trust Master Servicer) and from information
that the respective Pooled Mortgage Loan Sellers deliver or cause to be
delivered to such Master Servicer (including but not limited to information
prepared by third-party servicers of the subject Pooled Mortgage Loans with
respect to the period prior to the Closing Date). Each Special Servicer shall
from time to time (and, in any event, upon request) provide each Master Servicer
with such information in its possession regarding the Specially Serviced
Mortgage Loans and Administered REO Properties for which such Special Servicer
is the applicable Special Servicer as may be necessary for such Master Servicer
to prepare each report and any supplemental information to be provided by such
Master Servicer to the Certificate Administrator.
(d) CMSA Operating Statement Analysis Report, CMSA Financial Files,
CMSA Comparative Financial Status Reports and CMSA NOI Adjustment Worksheets.
The applicable Master Servicer shall prepare and maintain a CMSA Operating
Statement Analysis Report and a CMSA NOI Adjustment Worksheet with respect to
each Mortgaged Property that secures a Serviced Pooled Mortgage Loan that is not
a Specially Serviced Pooled Mortgage Loan and the applicable Special Servicer
shall prepare and maintain a CMSA Operating Statement Analysis Report and a CMSA
NOI Adjustment Worksheet with respect to each Specially Serviced Pooled Mortgage
Loan and Administered REO Property, in each case in accordance with the
provisions described below. As to quarterly (that is, not annual) periods,
within 105 calendar days after the end of each of the first three calendar
quarters (in each year) for the trailing or quarterly information received,
commencing with respect to the quarter ending on June 30, 2006, the applicable
Master Servicer (in the case of Mortgaged Properties that secure Serviced Pooled
Mortgage Loans that are not Specially Serviced Mortgage Loans) or the applicable
Special Servicer (in the case of Mortgaged Properties securing Specially
Serviced Mortgaged Loans and Administered REO Properties) shall, based upon the
operating statements or rent rolls received (if and to the extent received) and
covering such calendar quarter, prepare (or, if previously prepared, update) the
CMSA Operating Statement Analysis Report and the CMSA Comparative Financial
Status Report for each related Mortgaged Property and/or REO Property, using the
normalized quarterly and normalized year-end operating statements and rent rolls
received from the related Borrower; provided, however, that, until such time as
CMSA shall adopt a standard that requires the use of normalized quarterly
operating statements and rent rolls, the applicable Master Servicer shall be
permitted to use the non-normalized quarterly operating statements and rent
rolls. As to annual (that is, not quarterly) periods, not later than the second
Business Day following the Determination Date occurring in June of each year
(beginning in 2007 for year-end 2006), the applicable Master Servicer (in the
case of Mortgaged Properties securing Serviced Pooled Mortgage Loans that are
not Specially Serviced Mortgage Loans) or the applicable Special Servicer (in
the case of Mortgaged Properties securing Specially Serviced Mortgage Loans and
Administered REO Properties) shall, based upon the most recently available
normalized year-end financial statements and most recently available rent rolls
received (if and to the extent received) not less than thirty (30) days prior to
such second Business Day, prepare (or, if previously prepared, update) the CMSA
Operating Statement Analysis Report, the CMSA Comparative Financial Status
Report and a CMSA NOI Adjustment Worksheet for each related Mortgaged Property
and/or REO Property.
The Master Servicers and the Special Servicers shall each remit
electronically an image (labeled according to the ARCap Naming Convention for
Electronic File Delivery) of each CMSA Operating Statement Analysis Report
and/or each CMSA NOI Adjustment Worksheet prepared or updated by it (promptly
following initial preparation and each update thereof), together with the
underlying operating statements and rent rolls (in an electronic imaged format
labeled according to the ARCap Naming Convention for Electronic File Delivery)
to the Controlling Class Representative, the Certificate Administrator (upon
request) and, in the case of such a report prepared or updated by a Master
Servicer, the applicable Special Servicer. The Certificate Administrator shall,
upon request from the applicable Master Servicer or the applicable Special
Servicer and, to the extent such items have been delivered to the Certificate
Administrator by a Master Servicer or a Special Servicer, deliver to any
Certificateholder or, if the Certificate Administrator has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby,
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any Certificate Owner, a copy of the CMSA Operating Statement Analysis, the CMSA
Financial File and the CMSA NOI Adjustment Worksheet (or update thereof) for any
Mortgaged Property or REO Property and, if requested, the related operating
statement or rent rolls.
The applicable Master Servicer for a Non-Trust-Serviced Pooled
Mortgage Loan shall deliver information comparable to the above-described
information to the same Persons as described above and according to the same
time frames as described above, with reasonable promptness following such Master
Servicer's receipt of such information from the related Non-Trust Master
Servicer under the applicable Non-Trust Servicing Agreement.
If, with respect to any Performing Serviced Mortgage Loan, the
applicable Special Servicer has any questions for the related Borrower based
upon the information delivered to the applicable Special Servicer pursuant to
Section 3.12(a) or this Section 4.02(d), the applicable Master Servicer shall,
in this regard and without otherwise changing or modifying its duties hereunder,
reasonably cooperate with the Special Servicer in assisting the Special Servicer
in the Special Servicer's efforts to contact and solicit information from such
Borrower.
(e) Reporting by the Special Servicers. Not later than 2:00 p.m. (New
York City time) on the first Business Day following each Determination Date, the
General Special Servicer shall prepare and deliver or cause to be delivered to
both of the Master Servicers and the Controlling Class Representative, and each
Loan Specific Special Servicer shall prepare and deliver or cause to be
delivered to the applicable Master Servicer for the related Serviced Mortgage
Loan Group, the related Non-Pooled Subordinate Noteholder(s) and, upon request,
the Controlling Class Representative, the CMSA Special Servicer Loan File with
respect to those Specially Serviced Mortgage Loans and Administered REO
Properties for which it is the applicable Special Servicer, providing the
required information as of such Determination Date. In addition, each Special
Servicer shall from time to time provide the Master Servicers with such
information in such Special Servicer's possession regarding any Specially
Serviced Mortgage Loan or Administered REO Property as may be requested by
either Master Servicer and is reasonably necessary for such Master Servicer to
prepare each report and any supplemental information required to be provided by
such Master Servicer to the Certificate Administrator or (in the case of the
Master Servicer that is not the Servicer Report Administrator) to the Servicer
Report Administrator.
(f) Other Reporting by the Master Servicers. Not later than 12:00 noon
(New York City time) on the Business Day immediately preceding each Distribution
Date, the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Certificate Administrator
a CMSA Financial File, a CMSA Property File and a CMSA Comparative Financial
Status Report, combining information for the Pooled Mortgage Loans and REO
Properties for which it is the applicable Master Servicer and the information
delivered to the Servicer Report Administrator by the other Master Servicer with
respect to the Pooled Mortgage Loans and REO Properties for which such other
Master Servicer is the applicable Master Servicer, without segregation according
to the identities of the Master Servicers, and in each case providing the most
recent information with respect to the subject Pooled Mortgage Loans and REO
Properties as of the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of such other date as of which such
information is provided pursuant to the terms of the related Mortgage Loan Group
Intercreditor Agreement and the related Non-Trust Servicing Agreement) and, in
each case, if applicable, identifying each subject Pooled Mortgage Loan by loan
number and property name. Not later than 9:00 a.m. (New York City time) on the
third Business Day following each Determination Date, the Master Servicer that
is not the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Servicer Report
Administrator a CMSA Financial File, a CMSA Property File and a CMSA Comparative
Financial Statement Report, combining information for the Pooled Mortgage Loans
and REO Properties for which such Master Servicer is the applicable Master
Servicer and in each case providing the most recent information with respect to
the subject Pooled Mortgage Loans and REO Properties as of the related
Determination Date (or, in the case of a Non-Trust-Serviced Pooled Mortgage
Loan, as of such other date as of which such information is provided pursuant to
the terms of the related Non-Trust Servicing Agreement) and, in each case, if
applicable, identifying each subject Pooled Mortgage Loan by loan number and
property name. Each CMSA Financial File, CMSA Property File and CMSA Comparative
Financial Statement Report delivered by a Master Servicer as described above
shall be in a computer-readable medium downloadable by the Certificate
Administrator and (if applicable) the Servicer Report Administrator (or, at the
Certificate
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Administrator's or (if applicable) the Servicer Report Administrator's written
request, in a form reasonably acceptable to the recipient, including on a
loan-by-loan basis). Notwithstanding the foregoing provisions of this subsection
(f), neither Master Servicer shall be required to prepare and/or deliver any of
such files or reports with respect to the Determination Date in July 2006.
Not later than 12:00 noon (New York City time) on the Business Day
immediately preceding each Distribution Date, the Servicer Report Administrator
shall deliver or cause to be delivered, with respect to those Pooled Mortgage
Loans and REO Properties as to which it is the applicable Master Servicer, and
shall prepare (if any to the extent necessary) and deliver or cause to be
delivered to the Certificate Administrator, in a computer-readable medium
downloadable by the Certificate Administrator (or, at the Certificate
Administrator's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis), a CMSA Delinquent Loan Status
Report, a CMSA Historical Loan Modification and Corrected Mortgage Loan Report,
a CMSA Historical Liquidation Report, a CMSA REO Status Report, a CMSA Operating
Statement Analysis Report, a CMSA Comparative Financial Status Report, a CMSA
Servicer Watch List, a CMSA NOI Adjustment Worksheet, a CMSA Special Servicer
Loan File and a Realized Loss Report, in each case combining information for the
Pooled Mortgage Loans and REO Properties for which it is the applicable Master
Servicer and the information delivered to the Servicer Report Administrator by
the other Master Servicer with respect to the Pooled Mortgage Loans and REO
Properties for which such other Master Servicer is the applicable Master
Servicer but segregated according to the identities of the Master Servicers, in
each case providing the most recent information with respect to the subject
Pooled Mortgage Loans and REO Properties as of the related Determination Date
(or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of such other
date as of which such information is provided pursuant to the terms of the
related Non-Trust Servicing Agreement) and, in each case, if applicable,
identifying each subject Pooled Mortgage Loan by loan number and property name.
On the third Business Day following each Determination Date (which date is the
Business Day immediately preceding the related Distribution Date), the Master
Servicer that is not the Servicer Report Administrator, shall prepare (if any to
the extent necessary) and deliver or cause to be delivered to the Servicer
Report Administrator, in a computer-readable medium downloadable by the Servicer
Report Administrator (or, at the Servicer Report Administrator's written
request, in a form reasonably acceptable to the recipient, including on a
loan-by-loan basis), a CMSA Delinquent Loan Status Report, a CMSA Historical
Loan Modification and Corrected Mortgage Loan Report, a CMSA Historical
Liquidation Report, a CMSA REO Status Report, a CMSA Operating Statement
Analysis Report, a CMSA Comparative Financial Status Report, a CMSA Servicer
Watch List, a CMSA NOI Adjustment Worksheet a CMSA Special Servicer Loan File
and a Realized Loss Report, in each case combining information for the Pooled
Mortgage Loans and REO Properties for which it is the applicable Master
Servicer, in each case providing the most recent information with respect to the
subject Pooled Mortgage Loans and REO Properties as of the related Determination
Date (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of such
other date as of which such information is provided pursuant to the terms of the
related Non-Trust Servicing Agreement) and, in each case, if applicable,
identifying each subject Pooled Mortgage Loan by loan number and property name.
Notwithstanding the foregoing, neither Master Servicer shall be required to
prepare and deliver any of such files or reports with respect to the initial
Determination Date following the Closing Date.
Not later than the first Business Day following each Distribution Date
(which day is the second Business Day following the related Master Servicer
Remittance Date), the Servicer Report Administrator shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Certificate
Administrator and the Controlling Class Representative an ARCap P&I Advance as
of Remittance Date Report and an ARCap Interest on Advance Reconciliation
Report, each combining information for the Pooled Mortgage Loans for which it is
the applicable Master Servicer and the information delivered to the Servicer
Report Administrator by the other Master Servicer with respect to the Pooled
Mortgage Loans for which such other Master Servicer is the applicable Master
Servicer, without segregation according to the identities of the Master
Servicers, and in each case providing the most recent information with respect
to the subject Pooled Mortgage Loans as of the Master Servicer Remittance Date
related to such Distribution Date (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, as of such other date as of which such information is
provided pursuant to the terms of the related Non-Trust Servicing Agreement).
Not later than each Distribution Date (which day is the first Business Day
following the related Master Servicer Remittance Date), the Master Servicer that
is not the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Servicer Report
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Administrator an ARCap P&I Advance as of Remittance Date Report and an ARCap
Interest on Advance Reconciliation Report, in each case providing the most
recent information with respect to the subject Pooled Mortgage Loans as of the
Master Servicer Remittance Date related to such Distribution Date (or, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, as of such other date as of
which such information is provided pursuant to the terms of the related
Non-Trust Servicing Agreement).
Within two Business Days following the end of each calendar month, the
Servicer Report Administrator shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Certificate Administrator and the
Controlling Class Representative an ARCap Mortgage Loans Delinquent Report,
combining information for the Pooled Mortgage Loans for which it is the
applicable Master Servicer and the information delivered to the Servicer Report
Administrator by the other Master Servicer with respect to the Pooled Mortgage
Loans for which such other Master Servicer is the applicable Master Servicer,
without segregation according to the identities of the Master Servicers, and in
each case providing the most recent information with respect to the subject
Pooled Mortgage Loans (which shall be the Pooled Mortgage Loans for which a P&I
Advance was made on the preceding P&I Advance Date) as of the end of such
calendar month. Within one Business Day following the end of each calendar
month, the Master Servicer that is not the Servicer Report Administrator shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Servicer Report Administrator an ARCap Mortgage Loans Delinquent Report
providing the most recent information with respect to the subject Pooled
Mortgage Loans for which such Master Servicer is the applicable Master Servicer
(which shall be the Pooled Mortgage Loans for which such Master Servicer is the
applicable Master Servicer and a P&I Advance was made on the preceding Master
Servicer Remittance Date) as of the end of such calendar month.
Each Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (and any ARCap
P&I Advance as of Remittance Date Report, any ARCap Interest on Advances
Reconciliation Report and any ARCap Mortgage Loans Delinquent Report) prepared
by it with respect to the Pooled Mortgage Loans and REO Properties as to which
it is the applicable Master Servicer, available each month on such Master
Servicer's internet website only with the use of a password, in which case such
Master Servicer shall provide such password to (i) the other parties to this
Agreement, who by their acceptance of such password shall be deemed to have
agreed not to disclose such password to any other Person, (ii) the Rating
Agencies and the Controlling Class Representative, and (iii) each
Certificateholder and Certificate Owner who requests such password, provided
that any such Certificateholder or Certificate Owner, as the case may be, has
delivered a certification substantially in the form of Exhibit K-1 to the
Certificate Administrator (with a copy to such Master Servicer). In connection
with providing such access to its internet website, a Master Servicer may
require registration and the acceptance of a reasonable disclaimer and otherwise
(subject to the preceding sentence) adopt reasonable rules and procedures, which
may include, to the extent a Master Servicer deems necessary or appropriate,
conditioning access on execution of a reasonable agreement governing the
availability, use and disclosure of such information, and which may provide
indemnification to such Master Servicer for any liability or damage that may
arise therefrom. For the avoidance of doubt, the foregoing sentence shall not be
construed to limit any right to receive information already provided for in this
Agreement.
If either Master Servicer determines, in its reasonable judgment, that
information regarding the Pooled Mortgage Loans and REO Properties for which it
is the applicable Master Servicer (in addition to the information otherwise
required to be contained in the CMSA Investor Reporting Package) should be
disclosed to Certificateholders and Certificate Owners, then (i) if the nature
of the information is comparable to the information contemplated by the forms of
Restricted Servicer Reports or the applicable Master Servicer otherwise
determines that public availability of such information is not appropriate under
the circumstances, (A) the applicable Master Servicer shall be entitled to so
notify the Certificate Administrator, set forth such information in an
additional report (in a format reasonably acceptable to the Certificate
Administrator), deliver such report to the Certificate Administrator
simultaneously with the delivery of its reports described in the first paragraph
of this Section 4.02(f) and provide to the Certificate Administrator a statement
(for inclusion in the Certificate Administrator Report for the related
Distribution Date or for direct posting to the Certificate Administrator's
website, as the case may be) generally describing the type of information
provided and to the effect that such information will be made available by the
same means and at the same time that the Restricted Servicer Reports are made
available with respect to such Distribution Date; and (B) if the information
described in the immediately preceding clause (A) is timely received, the
Certificate Administrator shall include such statement in the Certificate
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Administrator Report for such Distribution Date (or directly post it to the
Certificate Administrator's internet website) and make such additional report
available by the same means and at the same time that the Restricted Servicer
Reports are made available with respect to such Distribution Date; and (ii) if
the nature of the information is not as described by clause (i) above, the
applicable Master Servicer shall be entitled to so notify the Certificate
Administrator, set forth such information in an additional report (in a format
reasonably acceptable to the Certificate Administrator) and deliver such report
to the Certificate Administrator simultaneously with the delivery of its reports
described in the first paragraph of this Section 4.02(f); and (B) if the
information described in the immediately preceding clause (A) is timely
received, the Certificate Administrator shall include such additional report in
or as an attachment to the Certificate Administrator Report for such
Distribution Date (or directly post it to the Certificate Administrator's
internet website). If the applicable Master Servicer or the applicable Special
Servicer for a Serviced Mortgage Loan determines, in its reasonable judgment,
that information regarding such Serviced Mortgage Loan, any related Mortgaged
Property or any related REO Property for which it is the applicable Master
Servicer should be disclosed to the related Non-Pooled Noteholders (if any),
then such Master Servicer may forward or make such information available to such
Non-Pooled Noteholders.
(g) Certain General Provisions Regarding Reporting. The applicable
Special Servicer shall deliver to the applicable Master Servicer(s) the reports
and files required to be delivered pursuant to Section 4.02(d) and Section
4.02(e), the Master Servicer that is not the Servicer Report Administrator shall
deliver to the Servicer Report Administrator the reports and files required to
be delivered pursuant to Section 4.02(c), Section 4.02(d) and Section 4.02(f)
and the applicable Master Servicer(s) shall deliver to the Certificate
Administrator the reports set forth in Section 4.02(c) and Section 4.02(f), in
an electronic format reasonably acceptable to the Special Servicers, the Master
Servicers and the Certificate Administrator. Each Master Servicer may, absent
manifest error, conclusively rely on the file to be provided by a Special
Servicer pursuant to Section 4.02(e). The Servicer Report Administrator may,
absent manifest error, conclusively rely on the reports to be provided by the
other Master Servicer pursuant to Section 4.02(c) and Section 4.20(f). The
Certificate Administrator may, absent manifest error, conclusively rely on the
reports to be provided by a Master Servicer pursuant to Section 4.02(c) and
Section 4.20(f). To the extent that any report to be prepared and provided to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator by a Master Servicer pursuant to
Section 4.02(c) and Section 4.20(f) is dependent on information from a Special
Servicer, the other Master Servicer or a party under a Non-Trust Servicing
Agreement, and such Special Servicer, such other Master Servicer or such party
under a Non-Trust Servicing Agreement (as the case may be) has not timely
provided such information to such Master Servicer, such Master Servicer shall on
a timely basis provide to the Certificate Administrator, the Controlling Class
Representative and/or (if applicable) the Servicer Report Administrator, as
applicable, as complete a report as the information provided by such Special
Servicer, such other Master Servicer or such party under a Non-Trust Servicing
Agreement (as the case may be) permits and shall promptly update and provide to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator, as applicable, a complete report
when such Special Servicer, such other Master Servicer or such party under a
Non-Trust Servicing Agreement (as the case may be) provides such Master Servicer
with the requisite missing information; and such Master Servicer shall not be in
breach hereunder for so providing an incomplete report under Section 4.02(c) or
Section 4.02(f) under the foregoing circumstances. Furthermore, if any report to
be provided to the Certificate Administrator, the Controlling Class
Representative and/or (if applicable) the Servicer Report Administrator by a
Master Servicer pursuant to Section 4.02(c) or Section 4.02(f) was to be
prepared by a Special Servicer or the other Master Servicer and delivered to
such Master Servicer, such Master Servicer shall not be in breach by reason of
any delay in its delivery of such report to the Certificate Administrator, the
Controlling Class Representative and/or (if applicable) the Servicer Report
Administrator, as applicable, by reason of a delay on the part of such Special
Servicer or such other Master Servicer (as the case may be) to deliver such
report to such Master Servicer; and such Master Servicer shall deliver as
promptly as reasonably practicable to the Certificate Administrator, the
Controlling Class Representative and/or the Servicer Report Administrator, as
applicable, any such report that it receives from such Special Servicer or such
other Master Servicer (as the case may be) after the requisite delivery date.
(h) Order of Presentations. Each report hereunder that comprises part
of the CMSA Investor Reporting Package shall, to the extent such report presents
information regarding the individual Mortgage Loans and
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Mortgaged Properties, present such information in ascending order of the loan
identification number set forth in the Prospectus.
(i) Certain Means of Delivery. Except to the extent a form of delivery
is specified in this Agreement, if a Master Servicer or Special Servicer is
required to deliver any statement, report or information under any provision of
this Agreement, such Master Servicer or such Special Servicer, as the case may
be, may satisfy such obligation by (x) physically delivering a paper copy of
such statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on a Master Servicer's internet website or the
Certificate Administrator's internet website and notifying the Person(s)
entitled to such statement, report or information of such availability.
Notwithstanding the foregoing, the Certificate Administrator, the Trustee and
each Special Servicer may each request delivery in paper format of any
statement, report or information required to be delivered to the Certificate
Administrator, the Trustee or such Special Servicer, as the case may be, and
clause (z) shall not apply to the delivery of any information required to be
delivered to the Certificate Administrator, the Trustee or any Special Servicer,
as the case may be, unless the Certificate Administrator, the Trustee or such
Special Servicer, as the case may be, consents to such delivery.
(j) Notwithstanding any other provision of this Agreement to the
contrary, the parties hereto shall cause to be delivered to the Controlling
Class Representative the reports and information set forth on Exhibit E-6 hereto
in the manner, formats and at the times set forth therein. The intention of this
Section 4.02 is (among other things) to implement the reporting contemplated by
such Exhibit E-6. If the Controlling Class Representative and a Special Servicer
are Affiliates of one another, a report delivered to one of them by a Master
Servicer need not also be delivered to the other of them.
(k) During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, access to information regarding the Trust on a Master Servicer's Internet
Website will be conditioned to the party attempting to gain such access
electronically agreeing to keep confidential any such information that has not
been filed with the Commission.
(l) No provisions of this Agreement shall be deemed to require a
Master Servicer or Special Servicer to confirm or make any representation
regarding the accuracy of (or to be liable or responsible for) any other
Person's information or report.
(m) Each of the Master Servicers shall produce the reports required of
it under this Agreement (including those set forth on Exhibit E-6) but shall not
be required to (but may upon request) produce any ad hoc non-standard written
reports. If a Master Servicer elects to provide any non-standard reports, it may
require the Person requesting such report to pay a reasonable fee to cover the
costs of the preparation thereof.
(n) Notwithstanding anything in this Section 4.02 to the contrary, in
preparing and disseminating any of the statements, reports and other information
required under this Section 4.02, insofar as such statements, reports and other
information relate to a Non-Trust-Serviced Pooled Mortgage Loan or any related
REO Property, the applicable Master Servicer shall be entitled to rely upon the
information received by it under the related Mortgage Loan Group Intercreditor
Agreement and/or the related Non-Trust Servicing Agreement; provided that it
does not have actual knowledge that any such information received by it is
erroneous. In addition, absent knowledge to the contrary, the applicable Master
Servicer, the Servicer Report Administrator and the Certificate Administrator
shall assume that, on each Distribution Date, for so long as a
Non-Trust-Serviced Pooled Mortgage Loan or any successor REO Pooled Mortgage
Loan with respect thereto is part of the Mortgage Pool, an amount at least equal
to the Monthly Payment (or, following the related maturity date or any related
REO Acquisition, the Assumed Monthly Payment) for the preceding Due Date will
(in the form of a P&I Advance or otherwise) be passed through to the
Certificateholders, with the interest portion thereof adjusted to the related
Net Mortgage Rate.
(o) Each of the parties hereto shall cooperate with the other to make
information available that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act.
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(p) With respect to each Serviced Mortgage Loan Group, the applicable
Master Servicer shall deliver or cause to be delivered to each Serviced
Non-Pooled Mortgage Loan Noteholder (or its designee), the Certificate
Administrator (upon request), the applicable Special Servicer and the
Controlling Class Representative the following materials, in writing or by
electronic means reasonably acceptable to related Serviced Non-Pooled Mortgage
Loan Noteholder (or its designee) and such Master Servicer (and such reports may
include any reasonable disclaimers with respect to information provided by third
parties or with respect to assumptions required to be made in the preparation of
such reports as such Master Servicer deems appropriate) not later than two
Business Days after the end of each Collection Period:
(i) the amount of the distributions made on the respective
Mortgage Loan(s) in such Serviced Mortgage Loan Group for such period
allocable to interest (separately identifying Default Interest) and the
amount thereof allocable to principal;
(ii) if the amount of the distributions to any related Serviced
Non-Pooled Mortgage Loan Noteholder was less than the full amount that
would have been distributable to such Serviced Non-Pooled Mortgage Loan
Noteholder if there had been sufficient funds, the amount of the shortfall,
stating separately the amounts allocable to interest and principal;
(iii) the outstanding principal balance of each Mortgage Loan in
such Serviced Mortgage Loan Group immediately following payment for such
period;
(iv) the aggregate amount of unscheduled payments of principal
allocable to each Mortgage Loan in such Serviced Mortgage Loan Group (and
the source thereof) made during the related period;
(v) identification of any Event of Default under this Agreement
of which such Master Servicer has notice or actual knowledge, as of the
date of such report;
(vi) the aggregate outstanding Servicing Advances with respect to
such Serviced Mortgage Loan Group and interest thereon as of the end of,
and all interest paid on Servicing Advances with respect to such Serviced
Mortgage Loan Group during, the prior calendar month;
(vii) the amount of the servicing compensation paid to the
applicable Master Servicer and the applicable Special Servicer with respect
to such Serviced Mortgage Loan Group, including the Master Servicing Fee,
the Special Servicing Fee, any Work-out Fee, any Liquidation Fee and any
charges to the related Borrower retained by the applicable Master Servicer
or the applicable Special Servicer as allocated among the Mortgage Loans in
such Serviced Mortgage Loan Group;
(viii) information relating to the status of such Serviced
Mortgage Loan Group if the Mortgage Loans in such group constitute
Specially Serviced Mortgage Loans including, if applicable, the status of
the bankruptcy of the related Borrower (along with copies of any related
bankruptcy filings);
(ix) the amount of any shortfalls in distributions to the holders
of the Mortgage Loans in such Serviced Mortgage Loan Group for such period
and the amount of any outstanding amounts due on the such Mortgage Loans
for prior periods; and
(x) information contained in the CMSA Investor Reporting Package
relating solely to the Pooled Mortgage Loans within such Serviced Mortgage
Loan Group.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m. (New York City time) on each P&I Advance
Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit
from its own funds to the Certificate Administrator for deposit into the
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Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made by such Master Servicer in respect of the related Distribution
Date, (ii) apply amounts held in such Master Servicer's Collection Account for
future distribution to Certificateholders in subsequent months in discharge of
any such obligation to make such P&I Advances, or (iii) make such P&I Advances
in the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made by such Master Servicer; provided, that the Master
Servicer shall give preference to amounts in clause (ii) of this sentence for
purposes of making P&I Advances. Any amounts held in either Master Servicer's
Collection Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in such Master Servicer's records and replaced
by such Master Servicer by deposit in its Collection Account prior to the next
succeeding Master Servicer Remittance Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 3:30 p.m.
(New York City time) on any P&I Advance Date, either Master Servicer shall not
have made any P&I Advance required to be made by it on such date pursuant to
this Section 4.03(a) (and shall not have delivered to the Certificate
Administrator and the Trustee the Officer's Certificate and other documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted by such Master Servicer on such date,
then the Certificate Administrator shall provide notice of such failure to such
Master Servicer by facsimile transmission as soon as possible, but in any event
before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such
notice the Certificate Administrator does not receive the full amount of such
P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date,
then the Certificate Administrator shall promptly notify the Trustee (but in any
event before 10:00 a.m. (New York City time) and the Trustee shall (not later
than 12:00 noon, New York City time, on the related Distribution Date) make the
portion of such P&I Advances that was required to be, but was not, made or
remitted, as the case may be, by such Master Servicer with respect to the
related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master
Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master
Servicer fails to do so) in respect of any Distribution Date, subject to Section
4.03(c) below, shall equal the aggregate of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments, in each case net of any
related Master Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any
comparable master servicing fees under the related Non-Trust Servicing
Agreement), due or deemed due, as the case may be, in respect of the Pooled
Mortgage Loans as to which such Master Servicer is the applicable Master
Servicer and any successor REO Mortgage Loans with respect thereto on their
respective Due Dates occurring in the month in which such Distribution Date
occurs, in each case to the extent such amount was not Received by the Trust as
of the close of business on the related Determination Date; provided that, if an
Appraisal Reduction Amount exists with respect to any Required Appraisal Loan,
then the interest portion of any P&I Advance required to be made in respect of
such Required Appraisal Loan for the related Distribution Date shall be reduced
(it being herein acknowledged that there shall be no reduction in the principal
portion of such P&I Advance) to equal the product of (i) the amount of the
interest portion of such P&I Advance that would otherwise be required to be made
in respect of such Required Appraisal Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which shall equal the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, and the denominator of which shall equal
the Stated Principal Balance of such Required Appraisal Loan immediately prior
to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer
(or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated
Advance in respect thereof) that it has made constitutes a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be made by such Person in its reasonable, good
faith judgment. In making such recoverability determination, such Person will be
entitled to consider (among other things) only the obligations of the Borrower
under the terms of the related Pooled Mortgage Loan as it may have been
modified, to consider (among other things) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions regarding the possibility and effects of future adverse
change with respect to such Mortgaged
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Properties, to estimate and consider (among other things) future expenses and to
estimate and consider (among other things) the timing of recoveries. In
addition, any such Person may update or change its recoverability determinations
at any time and may obtain from the applicable Special Servicer any analysis,
Appraisals or market value estimates or other information in the possession of
the applicable Special Servicer for such purposes. Any determination by a Master
Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Depositor, the applicable Special Servicer, the Certificate
Administrator, the Controlling Class Representative and, if made by a Master
Servicer, the Trustee (on or before the related P&I Advance Date in the case of
a proposed P&I Advance), setting forth the basis for such determination,
accompanied by a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination by a
Qualified Appraiser, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that the Person
making such determination may have obtained. A copy of any such Officer's
Certificate (and accompanying information) of the Trustee or any Fiscal Agent
shall also be promptly delivered to the Certificate Administrator, the
Controlling Class Representative, the applicable Special Servicer and the Master
Servicer for the subject Mortgage Loan. Absent bad faith, a Master Servicer's
determination as to the recoverability of any P&I Advance shall be conclusive
and binding on the Certificateholders and, in all cases, the Trustee shall be
entitled to conclusively rely on any nonrecoverability determination made by a
Master Servicer with respect to a particular P&I Advance. The applicable Special
Servicer shall promptly furnish any party required to make P&I Advances
hereunder with any information in its possession regarding the Specially
Serviced Pooled Mortgage Loans and REO Properties as such party required to make
P&I Advances may reasonably request. The applicable Master Servicer shall
consider Unliquidated Advances in respect of prior P&I Advances as outstanding
Advances for purposes of recoverability determinations as if such Unliquidated
Advance were a P&I Advance.
The Special Servicer for each Pooled Mortgage Loan shall also be
entitled to make a determination (subject to the same standards and procedures
that apply in connection with a determination by the applicable Master Servicer)
to the effect that a prior P&I Advance (or Unliquidated Advance in respect
thereof) previously made hereunder by the applicable Master Servicer (or, if
applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any
proposed P&I Advance by the applicable Master Servicer (or, if applicable, the
Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case
such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes
of this Agreement. A copy of any Officer's Certificate (and accompanying
information) of the applicable Special Servicer in support of its determination
shall be promptly delivered to the Master Servicer for the subject Mortgage
Loan. The applicable Special Servicer may update or change its recoverability
determination at any time.
In connection with each Non-Pooled Pari Passu Companion Loan (but if a
Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial
mortgage securitization as of the Closing Date, then this provision shall apply
only from and after the date on which the applicable Master Servicer has
received notice to the effect that such Non-Pooled Pari Passu Companion Loan has
been securitized as part of a commercial mortgage securitization similar to the
securitization effected by this Agreement and in which securities are issued
that are rated by at least one national statistical rating organization): (i) if
the applicable Master Servicer receives written notice (which notice is
accompanied by the supporting evidence for such determination) that the related
master servicer or other comparable party responsible for making debt service
advances under the pooling and servicing agreement for such securitization has
determined, pursuant to such agreement, that any debt service advance made or to
be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any
successor REO mortgage loan with respect thereto) would not ultimately be
recoverable out of collections on such Mortgage Loan (or such REO mortgage
loan), then such Master Servicer shall deliver an Officer's Certificate to such
effect to the Trustee, the applicable Special Servicer and the Depositor or
shall forward a copy of the written notice received from such master servicer or
comparable party; (ii) if such Master Servicer thereafter receives notice (which
notice is accompanied by the supporting evidence for such determination) that
such determination has been withdrawn or rescinded by such comparable party, or
if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan
otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by
operation of the definition of "Nonrecoverable P&I Advance" herein, then such
Master Servicer shall provide notice to such effect to the Trustee, the
applicable Special Servicer and the Depositor; (iii) if such Master Servicer
determines that any P&I
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Advance made or to be made with respect to any Pooled Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) included in the same Mortgage
Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the
Master Servicer shall notify in writing such comparable party of such
determination (which notice shall be accompanied by the supporting evidence for
such determination as contemplated by the preceding paragraph); and (iv)
following any determination described in the preceding clause (iii), if such
Master Servicer subsequently determines (other than by operation of clause (ii)
above) that P&I Advances made or to be made with respect to such Pooled Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto) are no longer
Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing
such comparable party of such determination (which notice shall be accompanied
by the supporting evidence for such determination as contemplated by the
preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders
(and its related master servicer or comparable party responsible for debt
service advances) shall be a third party beneficiary of the preceding clauses
(iii) and (iv) to the extent that such clause relates to the related Non-Pooled
Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a
third party beneficiary of a provision in the related Mortgage Loan Group
Intercreditor Agreement or in the applicable pooling and servicing agreement
that imposes (in connection with the related Non-Pooled Pari Passu Companion
Loan) on such comparable party duties (among others) that are substantially the
same as the duties that are imposed (in connection with the related Pooled
Mortgage Loan) on the applicable Master Servicer under the preceding clauses
(iii) and (iv) and the definition of "Nonrecoverable Advance". If the applicable
Master Servicer receives notice of a nonrecoverability determination by another
party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included
in a Mortgage Loan Group as described above, such Master Servicer shall promptly
forward such notice and the accompanying information to the applicable related
comparable party under the other pooling and servicing agreement.
(d) The Master Servicers and the Trustee shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of each P&I Advance made thereby (with its own funds), to the
extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly
Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or
an REO Pooled Mortgage Loan when made, in which case such interest shall begin
to accrue from the related P&I Advance Date, or (ii) remains outstanding when
the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of
the subject Monthly Payment or Assumed Monthly Payment, in which case such
interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a
Past Grace Period Loan in respect of the subject Monthly Payment or Assumed
Monthly Payment, in either case, for so long as such P&I Advance is outstanding
(or, in the case of Advance Interest payable to a Master Servicer, if earlier,
until the Late Collection of the delinquent principal and/or interest in respect
of which such P&I Advance was made has been Received by the Trust). Such
interest with respect to any P&I Advance shall be payable: (i) first, in
accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently
collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as
to which such P&I Advance relates; and (ii) then, after such P&I Advance is
reimbursed, but only if and to the extent that such Default Charges are
insufficient to cover such Advance Interest, out of general collections on the
Pooled Mortgage Loans and REO Properties on deposit in the applicable Master
Servicer's Collection Account or, to the extent contemplated by the second
paragraph of Section 3.05(a), in the other Master Servicer's Collection Account.
The applicable Master Servicer shall (subject to the operation of Section
3.05(a)(II)) reimburse itself or the Trustee, as applicable, for any outstanding
P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled
Mortgage Loan as soon as practicable after funds available for such purpose are
deposited in such Master Servicer's Collection Account, and in no event shall
interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to
which the corresponding Late Collection was received by or on behalf of the
Trust as of the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master Servicer
or the Trustee shall account for that part of the P&I Advances which is
attributable to Past Grace Period Loans, and that part of the P&I Advances which
is attributable to Within Grace Period Loans.
(f) Notwithstanding anything to the contrary, no P&I Advances shall be
made with respect to any Non-Pooled Mortgage Loan (whether or not it constitutes
a Serviced Non-Pooled Mortgage Loan or otherwise) or any successor REO Mortgage
Loan.
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SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the
Certificate Administrator shall determine the amount, if any, by which (i) the
then aggregate of the Class Principal Balances of all the Classes of Principal
Balance Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then, except to the extent that such excess
exists because of the reimbursement of Workout-Delayed Reimbursement Amounts
(from the principal portions of P&I Advances and/or payments or other
collections of principal on the Mortgage Pool pursuant to subsection (II)(iii)
of Section 3.05(a)) during any prior Collection Period (other than those that
were determined to constitute Nonrecoverable Advances in the immediately
preceding Collection Period), the Class Principal Balances of 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 and Class A-M Certificates shall be
reduced sequentially, in that order, in each case, until such excess or the
related Class Principal Balance is reduced to zero (whichever occurs first). If,
after the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then, except to the extent that such excess exists because of the
reimbursement of Workout-Delayed Reimbursement Amounts (from the principal
portion of P&I Advances and/or payments or other collections of principal on the
Mortgage Pool pursuant to subsection (II)(iii) of Section 3.05(a)) during any
prior Collection Period (other than those that were determined to constitute
Nonrecoverable Advances in the immediately preceding Collection Period), the
respective Class Principal Balances of all the outstanding Classes of the Class
A Senior REMIC III Certificates shall be reduced on a pro rata basis in
accordance with the relative sizes of such Class Principal Balances, until any
such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(i), the Certificate Administrator shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then, except to the extent that
such excess exists because of the reimbursement of Workout-Delayed Reimbursement
Amounts (from the principal portion of P&I Advances and/or payments or other
collections of principal on the Mortgage Pool pursuant to subsection (II)(iii)
of Section 3.05(a)) during the preceding Collection Period, the Uncertificated
Principal Balances of REMIC II Regular Interest P, REMIC II Regular Interest O,
REMIC II Regular Interest N, REMIC II Regular Interest M, REMIC II Regular
Interest L, REMIC II Regular Interest K, REMIC II Regular Interest J, REMIC II
Regular Interest H, REMIC II Regular Interest G, REMIC II Regular Interest F,
REMIC II Regular Interest E, REMIC II Regular Interest D, REMIC II Regular
Interest C, REMIC II Regular Interest B, REMIC II Regular Interest A-J and REMIC
II Regular Interest A-M shall be reduced sequentially, in that order, in each
case, until such excess (other than any portion thereof that exists because of
the reimbursement of Workout-Delayed Reimbursement Amounts (from the principal
portion of P&I Advances and/or payments or other collections of principal on the
Mortgage Pool pursuant to subsection (II)(iii) of Section 3.05(a)) during the
preceding Collection Period) or the related Uncertificated Principal Balance is
reduced to zero (whichever occurs first). If, after the foregoing reductions,
the amount described in clause (i) of the second preceding sentence still
exceeds the amount described in clause (ii) of such sentence, then, except to
the extent that such excess exists because of the reimbursement of
Workout-Delayed Reimbursement Amounts (from the principal portion of P&I
Advances and/or payments or other collections of principal on the Mortgage Pool
pursuant to subsection (II)(iii) of Section 3.05(a)) during the preceding
Collection Period, the Uncertificated Principal Balances of 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 and REMIC II
Regular Interest A-1A shall be reduced on a pro rata basis, in accordance with
the relative sizes of such amounts of Uncertificated Principal Balance, until
any such remaining excess is reduced to zero. All such reductions in the
Uncertificated Principal Balances of the respective REMIC II Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses. Any reductions in the aggregate amount of the
Uncertificated Principal Balances of a group of REMIC II Regular Interests that
are Corresponding REMIC II Regular Interests with respect to a particular Class
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of the Class A Senior REMIC III Certificates pursuant to the preceding sentence
shall be allocated, as between the respective individual REMIC II Regular
Interests that form such group, to reduce the individual Uncertificated
Principal Balances of such REMIC II Regular Interests sequentially in ascending
order of that portion of their alphanumeric designations that follows the
portion thereof that is the same as the alphanumeric designation of such Class
of Class A Senior REMIC III Certificates, in each case until such Uncertificated
Principal Balance is reduced to zero. For the avoidance of doubt, the preceding
sentence shall not apply to the issuance of the Series 2006-PWR12 Commercial
Mortgage Pass-Through Certificates.
(c) On each Distribution Date, if, following the deemed distributions
to be made in respect of the REMIC I Regular Interests pursuant to Section
4.01(j), the Uncertificated Principal Balance of any REMIC I Regular Interest,
in each case after taking account of such deemed distributions, exceeds the
Stated Principal Balance of the related Pooled Mortgage Loan or REO Pooled
Mortgage Loan (or, if such REMIC I Regular Interest relates to multiple
Replacement Pooled Mortgage Loans, the aggregate Stated Principal Balance of the
related Pooled Mortgage Loans and/or REO Pooled Mortgage Loans), as the case may
be, that will be outstanding immediately following such Distribution Date, then,
except to the extent that such excess exists (taking account of the provisions
of the next succeeding sentence) because of the reimbursement of Workout-Delayed
Reimbursement Amounts (from the principal portion of P&I Advances and/or
payments or other collections of principal on the Mortgage Pool pursuant to
subsection (II)(iii) of Section 3.05(a)) during the preceding Collection Period,
the Uncertificated Principal Balance of such REMIC I Regular Interest shall be
reduced to equal such Stated Principal Balance of such related Pooled Mortgage
Loan or REO Pooled Mortgage Loan (or, if such REMIC I Regular Interest relates
to multiple Replacement Pooled Mortgage Loans, the aggregate Stated Principal
Balance of the related Pooled Mortgage Loans and/or REO Pooled Mortgage Loans),
as the case may be, that will be outstanding immediately following such
Distribution Date. For purposes of the immediately preceding sentence, the
aggregate amount excluded from the aggregate reductions of the Uncertificated
Principal Balances of the REMIC I Regular Interests collectively shall equal the
amount excluded from the reductions of the Uncertificated Principal Balances of
the REMIC II Regular Interests pursuant to subsection (b) and such aggregate
exclusion amount shall be deemed to be allocated among the REMIC I Regular
Interests pro rata according to their Stated Principal Balances that, in the
absence of such any and all such exclusions, would have been outstanding
immediately after such Distribution Date by operation of the immediately
preceding sentence. Any reductions in the Uncertificated Principal Balances of
the respective REMIC I Regular Interests pursuant to the second preceding
sentence shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Certificate Administrator receives the necessary
information from the Master Servicers and/or the Special Servicers, the
Certificate Administrator shall be responsible for performing all calculations
necessary in connection with the actual and deemed distributions to be made
pursuant to Section 4.01, the preparation of the Certificate Administrator
Reports pursuant to Section 4.02(a) and the actual and deemed allocations of
Realized Losses and Additional Trust Fund Expenses to be made pursuant to
Section 4.04. The Certificate Administrator shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Certificate Administrator shall have no
obligation to recompute, recalculate or otherwise verify any information
provided to it by a Master Servicer. The calculations by the Certificate
Administrator contemplated by this Section 4.05 shall, in the absence of
manifest error, be presumptively deemed to be correct for all purposes
hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-3; provided that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in each Class of Interest Only
Certificates and Principal Balance Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Principal
Balance Certificates and Interest Only Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Certificate Notional Amounts, as the case may be, as of the Closing Date of
$25,000 in the case of each Class of Principal Balance Certificates and $250,000
in the case of each Class of Interest Only Certificates, and in each such case
in integral multiples of $1 in excess thereof. The Class R and Class V
Certificates will be issuable in denominations representing Percentage Interests
in the related Class of not less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication 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.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Certificate Administrator is hereby initially appointed (and hereby agrees
to act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Trustee, the Depositor, the Master Servicers, the
Special Servicers and (if the Certificate Administrator is not the Certificate
Registrar) the Certificate Administrator, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. If the Certificate Administrator resigns or is
removed in accordance with the terms hereof, the successor certificate
administrator shall immediately succeed to its duties as Certificate Registrar.
The Depositor, the Trustee, the Certificate Administrator (if it is not the
Certificate Registrar), each Master Servicer and each Special Servicer shall
each have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate of
the Certificate Registrar as to the information set forth in the Certificate
Register.
If three or more Holders make written request to the Certificate
Registrar, and such request states that such Holders desire to communicate with
other Holders with respect to their rights under this Agreement or under the
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Certificates and is accompanied by a copy of the communication which such
Holders propose to transmit, then the Certificate Registrar shall, within 30
days after the receipt of such request, afford (or cause any other Certificate
Registrar to afford) the requesting Holders access during normal business hours
to the most recent list of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest therein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable securities
or blue sky laws of any state or other jurisdiction within the United States,
its territories and possessions, or is otherwise made in accordance with the
Securities Act and such other securities or blue sky laws. If offers and sales
of any Certificate are made in any jurisdiction outside of the United States,
its territories and possessions, the Person making such offers and sales must
comply with all applicable laws of such jurisdiction.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, any Underwriter or any of their respective
Affiliates or, in the case of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates, a Transfer thereof to a successor Depository or to
the applicable Certificate Owner(s) in accordance with Section 5.03), 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 hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B (except that, in the case of any proposed
transfer of a Class R Certificate or a Class V Certificate, such prospective
Transferee may provide a certificate substantially in the form attached hereto
as Exhibit F-2A only); or (ii) an Opinion of Counsel satisfactory to the
Certificate Administrator to the effect that such prospective Transferee is an
Institutional Accredited Investor or a Qualified Institutional Buyer (except
that, in the case of any proposed transfer of a Class R Certificate or a Class V
Certificate, such Opinion of Counsel must be to the effect that such prospective
Transferee is a Qualified Institutional Buyer) and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, either Master Servicer,
any Special Servicer, the Tax Administrator, the Certificate Administrator, the
Trustee or the Certificate Registrar in their respective capacities as such),
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.
If a Transfer of any interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Non-Registered Certificates or a Transfer of any
interest therein by the Depositor, any Underwriter or any of their respective
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 hereto as Exhibit
F-2C, or (ii) an Opinion of Counsel to the effect that the prospective
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as provided in the
following two paragraphs, no interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If any Transferee of an interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates does
not, in connection with the subject Transfer, deliver to the Transferor the
Opinion of Counsel or the certification described in the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that all
the certifications set forth in Exhibit F-2C hereto are, with respect to the
subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the first sentence of the preceding paragraph) by the
Depositor, any Affiliate of the Depositor or any Person designated in writing by
the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Regulation S Global Certificate for such Class of Certificates
upon delivery to the Certificate
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Registrar of (x) a certificate to the effect that the Certificate Owner desiring
to effect such Transfer is the Depositor or an Affiliate of the Depositor and
(y) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator to debit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and credit the
account of a Depository Participant by a denomination of interests in such
Regulation S Global Certificate, that is equal to the denomination of beneficial
interests in the Book-Entry Non-Registered Certificates to be transferred. Upon
delivery to the Certificate Registrar of such certification and such orders and
instructions, the Certificate Administrator, subject to and in accordance with
the applicable procedures of the Depository, shall reduce the denomination of
the Rule 144A Global Certificate in respect of the applicable Class of
Book-Entry Non-Registered Certificates and increase the denomination of the
Regulation S Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Rule 144A Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Rule 144A Global Certificate upon delivery to the Certificate Registrar and
the Certificate Administrator of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Certificate Administrator to debit the account
of a Depository Participant by the denomination of the transferred interests in
such Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of
the certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Certificate Administrator, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Rule 144A Global Certificate by the denomination of the
transferred interests in such Rule 144A Global Certificate, and shall cause a
Definitive Certificate of the same Class as such Rule 144A Global Certificate,
and in a denomination equal to the reduction in the denomination of such Rule
144A Global Certificate, to be executed, authenticated and delivered in
accordance with this Agreement to the applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D hereto certifying that such Transferee is not a United States
Securities Person. On or prior to the Release Date, beneficial interests in the
Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates may be held only through Euroclear or Clearstream. The Regulation S
Global Certificate for each Class of Book-Entry Non-Registered Certificates
shall be deposited with the Certificate Administrator as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor, any Affiliate
of the Depositor or any Person designated in writing by the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Rule 144A
Global Certificate for such Class of Certificates upon delivery to the
Certificate Registrar of (x) a certificate to the effect that the Certificate
Owner desiring to effect such Transfer is the Depositor or an Affiliate of the
Depositor and (y) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in such Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar of such certification
and orders and instructions, the Certificate Administrator, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Regulation S Global Certificate in respect of such Class of
Book-Entry Non-Registered Certificates, and increase the denomination of the
Rule
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144A Global Certificate for such Class, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.
None of the Depositor, the Underwriters, the Certificate
Administrator, the Trustee, the Master Servicers, the Special Servicers, the Tax
Administrator 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 Non-Registered Certificate or interest therein
without registration or qualification. Any Certificateholder or Certificate
Owner desiring to effect a Transfer of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, the
Underwriters, the Certificate Administrator, the Trustee, each Master Servicer,
each Special Servicer, the Tax Administrator and the Certificate Registrar
against any liability that may result if such Transfer is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
(c) No Transfer of a Certificate or any interest therein shall be made
(A) to any Plan or (B) 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 assets of a Plan, if the purchase and holding of such
Certificate or interest therein by the prospective Transferee would result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in connection with the initial issuance of the Non-Registered Certificates or
any Transfer of a Non-Registered Certificate or any interest therein by the
Depositor, any Underwriter or any of their respective Affiliates or, in the case
of a Global Certificate for any Class of Book-Entry Non-Registered Certificates,
any Transfer thereof to a successor Depository or to the applicable Certificate
Owner(s) in accordance with Section 5.03, the Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee, and any Certificate Owner
transferring an interest in a Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) alternatively, but only in the case of a
Certificate that is not a Class R or Class V Certificate, a certification to the
effect that the purchase and holding of such Certificate or interest therein by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by reason of
Sections I and III of PTCE 95-60; or (iii) alternatively, but only in the case
of a Non-Registered Certificate that is an Investment Grade Certificate (other
than, if applicable, a Class R or Class V Certificate) that is being acquired by
or on behalf of a Plan in reliance on the Underwriter Exemption, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Certificate
Administrator, the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, any Special Servicer, either Primary Servicer, any Sub-Servicer, any
Person responsible for the servicing of a Non-Trust-Serviced Pooled Mortgage
Loan, any Exemption Favored Party or any Borrower with respect to Pooled
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Pooled Mortgage Loans determined as of the Closing Date, or
by any Affiliate of such Person, and (Z) agrees that it will obtain from each of
its Transferees that is a Plan a written representation that such Transferee
satisfied the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y). It is hereby acknowledged that the forms of certification
attached hereto as Exhibit G-1 (in the case of Definitive Non-Registered
Certificates) and Exhibit G-2 (in the case of ownership interests in Book-Entry
Non-Registered Certificates) are acceptable for purposes of the preceding
sentence. In lieu of one of the foregoing certifications, a prospective
Transferee may deliver to the Certificate Registrar a certification of facts and
an Opinion of Counsel which establish to the reasonable satisfaction of the
Trustee that such Transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code, and will not subject the Trustee, the Depositor,
the Certificate Administrator, a Master Servicer, a Special Servicer, a Primary
Servicer or a Sub-Servicer to any obligation in addition to those undertaken in
this Agreement; in the case of an
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ownership interest in a Book-Entry Non-Registered Certificate, the prospective
Transferee shall also deliver to the Certificate Owner from whom it is acquiring
the interest a copy of such certification of facts and Opinion of Counsel, and a
certification that these documents have been delivered to the Certificate
Registrar. If any Transferee of a Certificate (including a Registered
Certificate) or any interest therein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar (in the case of a Definitive
Certificate) or the Transferor (in the case of ownership interests in a
Book-Entry Certificate) any certification and/or Opinion of Counsel contemplated
by the second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and holding of such Certificate or interest therein by such
Transferee are exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code by reason of an Underwriter
Exemption (in the case of such a Certificate that is an Investment Grade
Certificate) or by reason of Sections I and III of PTCE 95-60 (in the case of
such a Certificate that is not an Investment Grade Certificate).
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Class R 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 Certificate Administrator under clause (ii) (A)
below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Administrator under clause (ii) (B) below
to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such disposition. The rights of each Person acquiring any Ownership Interest
in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and
shall promptly notify the Tax Administrator and the
Certificate Administrator of any change or impending change
in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar
shall require delivery to it, and shall not register the
Transfer of any Class R Certificate until its receipt, of an
affidavit and agreement substantially in the form attached
hereto as Exhibit H-1 (a "Transfer Affidavit and
Agreement"), from the proposed Transferee, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Class R Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of either the Certificate
Administrator or the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class
R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R 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 Class R Certificate and (2) not to Transfer its
Ownership Interest in such Class R Certificate unless it
provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing such Ownership Interest,
agrees to give the Tax Administrator and the
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Certificate Administrator written notice that it is a
"pass-through interest holder" within the meaning of
temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Class
R Certificate, if it is, or is holding an Ownership Interest
in a Class R Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such
Class R Certificate that was in compliance with the
provisions of this Section 5.02(d) shall be restored, to the
extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of
such Class R Certificate. None of the Depositor, the
Certificate Administrator, the Trustee or the Certificate
Registrar shall be under any liability to any Person for any
registration of Transfer of a Class R Certificate that is in
fact not permitted by this Section 5.02(d) 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.
(B) If any purported Transferee shall become a Holder of a Class
R Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such
Class R Certificate as described in clause (ii)(A) above
shall be invalid, illegal or unenforceable, the Certificate
Administrator shall have the right, but not the obligation,
to cause the Transfer of such Class R Certificate to a
Permitted Transferee selected by the Certificate
Administrator on such terms as the Certificate Administrator
may choose, and the Certificate Administrator shall not be
liable to any Person having an Ownership Interest in such
Class R Certificate as a result of the Certificate
Administrator's exercise of such discretion. Such purported
Transferee shall promptly endorse and deliver such Class R
Certificate in accordance with the instructions of the
Certificate Administrator. Such Permitted Transferee may be
the Certificate Administrator itself or any Affiliate of the
Certificate Administrator.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Class R Certificate to any Person
who is a Disqualified Organization, 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 Class R 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 Class R Certificate having as among its
record holders at any time any Person which is a Disqualified Organization, and
each of the other parties hereto shall furnish to the Tax Administrator all
information in its possession necessary for the Tax Administrator to discharge
such obligation. The Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Tax Administrator for providing
information thereto pursuant to this subsection (d)(iii) and Section
10.01(d)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there shall
have been delivered to the Certificate Administrator and the Tax Administrator
the following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Certificate Administrator and the Tax Administrator,
obtained at the expense of the party seeking such
modification of, addition to or elimination of such
provisions (but in no event at the
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expense of the Trustee, the Tax Administrator or the Trust),
to the effect that doing so will not (1) cause any REMIC
Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of any Class R
Certificate to a Person which is not a Permitted Transferee
or (2) cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the Transfer
of a Class R Certificate to a Person that is not a Permitted
Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Certificate Administrator
(or such Certificate Owner) to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
applicable foregoing acknowledgments, representations, warranties,
certifications and agreements with respect to each such account as set forth in
Subsections (b), (c) and/or (d), as appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class in authorized denominations evidencing a like
aggregate Percentage Interest in such Class.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Certificate Administrator or 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.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(k) In connection with the foregoing Sections 5.02(b), (c) and (d), in
no case shall the Depositor be responsible for the costs or expenses of any
certificates, opinions or agreements contemplated by such Sections 5.02(b), (c)
and (d).
SECTION 5.03. Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-1A, 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 shall, in the case of each such Class, initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in Section 5.02(b) and Section 5.03(c), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such Transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through
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the book-entry facilities of the Depository and, except as provided in Section
5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
The Classes of Non-Registered Certificates initially sold to Qualified
Institutional Buyers in reliance on Rule 144A or in reliance on another
exemption from the registration requirements of the Securities Act shall, in the
case of each such Class, be represented by the Rule 144A Global Certificate for
such Class, which shall be deposited with the Certificate Administrator as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository. The Classes of Non-Registered Certificates initially sold in
offshore transactions in reliance on Regulation S shall, in the case of each
such Class, be represented by the Regulation S Global Certificate for such
Class, which shall be deposited with the Certificate Administrator as custodian
for the Depository and registered in the name of Cede & Co. as nominee of the
Depository. All Transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Certificate Administrator, the Master Servicers, the Special
Servicers, the Trustee, the Depositor and the Certificate Registrar may for all
purposes, including the making of payments due on the Book-Entry Certificates,
deal with the Depository as the authorized representative of the Certificate
Owners with respect to such Certificates for the purposes of exercising the
rights of Certificateholders hereunder. Except as expressly provided to the
contrary herein, the rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Certificate Administrator may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and shall give notice to the Depository of
such record date.
(c) If (i)(A) the Depositor advises the Certificate Administrator, the
Trustee and the Certificate Registrar in writing that the Depository is no
longer willing or able to properly discharge its responsibilities with respect
to a Class of the Book-Entry Certificates, and (B) the Depositor is unable to
locate a qualified successor, or (ii) the Depositor at its option advises the
Trustee, the Certificate Administrator and the Certificate Registrar in writing
that it elects to terminate the book-entry system through the Depository with
respect to a Class of Book-Entry Certificates, the Certificate Registrar shall
notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicers, the Special Servicers, the Certificate Administrator, the Trustee or
the Certificate Registrar shall be liable for any delay in delivery of such
instructions, and each of them may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive Certificates
for purposes of evidencing ownership of any Class of Registered Certificates,
the registered holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein, neither the
Certificate Administrator nor the Certificate Registrar shall have any
responsibility whatsoever to monitor or restrict the Transfer of ownership
interests in any Certificate (including but not limited to any Non-Registered
Certificate) which interests are transferable through the book-entry facilities
of the Depository.
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) 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 (ii) there is delivered
to the Certificate Administrator and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Certificate Administrator or 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 the same
Class and like Percentage Interest. Upon the issuance of any new Certificate
under this Section, the Certificate Administrator and 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 Administrator and
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the applicable REMIC created hereunder, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
the Master Servicers, the Special Servicers, the Certificate Administrator, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever and none of the Depositor, the Master
Servicers, the Special Servicer, the Trustee, the Certificate Registrar or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Certificate
Administrator shall make such determination based on a certificate of such
Person which shall be substantially in the form of paragraph 1 of Exhibit K-1
hereto (or such other form as shall be reasonably acceptable to the Certificate
Administrator) and shall specify the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned; provided, however, that none of the Trustee, the Certificate
Administrator or the Certificate Registrar shall knowingly recognize such Person
as a Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of the Trustee, the Certificate Administrator or the Certificate
Registrar, as the case may be, acquired its Ownership Interest in a Book-Entry
Certificate in violation of Section 5.02(c), or if such Person's certification
that it is a Certificate Owner is in direct conflict with information actually
known by a Responsible Officer of the Trustee, the Certificate Administrator or
the Certificate Registrar, with respect to the identity of a Certificate Owner.
The Trustee, the Certificate Administrator and the Certificate Registrar shall
each exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee, the Certificate Administrator or the
Certificate Registrar, as the case may be.
SECTION 5.07. Appointment of Authenticating Agents.
(a) The Certificate Administrator may appoint at its expense an
Authenticating Agent, which shall be authorized to act on behalf of the
Certificate Administrator in authenticating Certificates. The Certificate
Administrator shall cause any such Authenticating Agent to execute and deliver
to the Certificate Administrator an instrument in which such Authenticating
Agent shall agree to act in such capacity, with the obligations and
responsibilities herein. Each Authenticating Agent must be organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to
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the same obligations, standard of care, protection and indemnities as would be
imposed on, or would protect, the Certificate Administrator hereunder. The
appointment of an Authenticating Agent shall not relieve the Certificate
Administrator from any of its obligations hereunder, and the Certificate
Administrator shall remain responsible for all acts and omissions of the
Authenticating Agent. In the absence of any other Person appointed in accordance
herewith acting as Authenticating Agent, the Certificate Administrator hereby
agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Certificate
Administrator is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Certificate
Administrator.
(b) Any Person into which any 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 any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
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) Any Authenticating Agent appointed in accordance with this Section
5.07 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Certificate Administrator, the Trustee, the Certificate
Registrar and the Depositor. The Certificate Administrator may at any time
terminate the agency of any Authenticating Agent appointed in accordance with
this Section 5.07 by giving written notice of termination to such Authenticating
Agent, the Trustee, the Certificate Registrar and the Depositor. Upon receiving
a notice of such a resignation or upon such a termination, or in case at any
time any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 5.07, the Certificate Administrator may appoint a
successor Authenticating Agent, in which case the Certificate Administrator
shall give written notice of such appointment to the Trustee, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
5.07. 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.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS
AND THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers, the
Primary Servicers and the Special Servicers.
The Depositor, the Master Servicers, the Primary Servicers and the
Special Servicers shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, each Master Servicer, each Primary Servicer and each Special Servicer
(but this shall not be construed to limit the terms of a Primary Servicing
Agreement as between the applicable Master Servicer and the applicable Primary
Servicer).
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a
Master Servicer or the Special Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master Servicers
and the Special Servicers shall each keep in full effect its existence, rights
and franchises as a corporation, bank, trust company, partnership, limited
liability company, association or other legal entity under the laws of the
jurisdiction wherein it was organized, and each shall obtain and preserve its
qualification to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicers and the Special
Servicers may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, a Master
Servicer or a Special Servicer shall be a party, or any Person succeeding to the
business of the Depositor, a Master Servicer, a Special Servicer, shall be the
successor of the Depositor, such Master Servicer or the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of either Master Servicer or a Special
Servicer unless (i) such succession will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency for the Rated Certificates) and, solely with
respect to the applicable Master Servicer or applicable Special Servicer for any
Serviced Mortgage Loan Group that includes one or more Non-Pooled Pari Passu
Companion Loans for which any Non-Pooled Pari Passu Companion Loan Securities
are outstanding, if such Serviced Mortgage Loan Group is then serviced and
administered under this Agreement, will not result in an Adverse Rating Event
with respect to any class of the related Non-Pooled Pari Passu Companion Loan
Securities (as confirmed in writing to the Trustee by each applicable Rating
Agency for such Non-Pooled Pari Passu Companion Loan Securities), as applicable,
and (ii) such successor or surviving Person makes the applicable representations
and warranties set forth in Section 2.05 (in the case of a successor or
surviving Person to PAR as a Master Servicer), Section 2.06 (in the case of a
successor or surviving Person to WFB as a Master Servicers), Section 2.07 (in
the case of a successor or surviving Person to the General Special Servicer), as
applicable or Section 2.08 (in the case of a successor or surviving Person to a
Loan Specific Special Servicer).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicers, the Primary Servicers and the Special Servicers.
(a) None of the Depositor, the Master Servicers, the Primary Servicers
or the Special Servicers shall be under any liability to the Trust, the Trustee,
the Certificateholders or any Serviced Non-Pooled Mortgage Loan Noteholder for
any action taken or not taken in good faith pursuant to this Agreement or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, a Master Servicer, a Primary Servicer or a Special Servicer
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against any liability to the Trust, the Trustee, the Certificateholders or any
Serviced Non-Pooled Mortgage Loan Noteholder for the breach of a representation
or warranty made by such party herein, or against any expense or liability
specifically required to be borne by such party without right of reimbursement
pursuant to the terms hereof, or against any liability which would otherwise be
imposed by reason of malfeasance, bad faith or negligence in the performance of,
or negligent disregard of, such party's obligations or duties hereunder. The
Depositor, each Master Servicer, each Primary Servicer, each Special Servicer
and any director, member, manager, officer, employee or agent of any such party
may rely in good faith on any document of any kind conforming to the
requirements of this Agreement for the truth and accuracy of the contents of
that document (and as to certificates and opinions, including Opinions of
Counsel, for the truth of the statements made therein and the correctness of the
opinions expressed therein) 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, which document, prima facie, is properly executed and submitted by any
Person, or any employee or agent of any Person (including legal counsel as to
opinions), respecting any matters arising hereunder. The Depositor, each Master
Servicer, each Primary Servicer, each Special Servicer and any director, member,
manager, officer, employee or agent of any such party, shall be indemnified and
held harmless by the Trust out of the relevant Collection Account, as provided
in Section 3.05(a), or the Distribution Account, as provided in Section 3.05(b),
against any loss, liability, cost or expense (including reasonable legal fees
and expenses) incurred in connection with any legal action or claim relating to
this Agreement or the Certificates, other than any loss, liability, cost or
expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) that constitutes a Servicing Advance that is otherwise reimbursable
under this Agreement; or (iii) incurred in connection with any legal action or
claim against such party resulting from any breach of a representation or
warranty made herein, any malfeasance, bad faith or negligence in the
performance of, or negligent disregard of, obligations or duties hereunder or
any willful or negligent violation of applicable law. None of the Depositor, the
Master Servicers, the Primary Servicer or the Special Servicers shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action the costs of which such party is specifically
required hereunder to bear, in its opinion does not involve it in any ultimate
expense or liability for which it would not be reimbursed hereunder; provided,
however, that the Depositor, a Master Servicer, a Primary Servicer or a Special
Servicer may in its discretion undertake any such action which it may reasonably
deem necessary or desirable with respect to the enforcement and/or protection of
the rights and duties of the parties hereto and the interests of the
Certificateholders (or, if a Serviced Mortgage Loan Group is involved, the
rights of the Certificateholders and the related Serviced Non-Pooled Mortgage
Loan Noteholder(s) (as a collective whole)). In such event, the legal expenses
and costs of such action, and any liability resulting therefrom, shall be
expenses, costs and liabilities of the Trust, and the Depositor, such Master
Servicer, such Primary Servicer or such Special Servicer, as the case may be,
shall be entitled to be reimbursed therefor from the relevant Collection
Account, as provided in Section 3.05(a), or the Distribution Account, as
provided in Section 3.05(b).
Notwithstanding the foregoing, if and to the extent that any loss,
liability, cost or expense that is, pursuant to this Section 6.03(a), required
to be borne by the Trust out of the Distribution Account or a Collection
Account, relates to any Serviced Mortgage Loan Group, (i) such loss, liability,
cost or expense shall be payable out of amounts on deposit in the relevant
Collection Account, any related Companion Note Custodial Account(s) and any
related Subordinate Note Custodial Account(s) collectively, prior to payment
from funds in the Distribution Account or a Collection Account that are
unrelated to such Serviced Mortgage Loan Group; (ii) if such Serviced Mortgage
Loan Group includes one or more Serviced Non-Pooled Subordinate Loans, such
loss, liability, cost or expense shall be payable out of amounts on deposit in
the related Subordinate Note Custodial Account and shall be payable out of the
Distribution Account or a Collection Account or Companion Note Custodial Account
only to the extent that amounts recoverable on the related Serviced Non-Pooled
Subordinate Loan(s) are insufficient to cover the portion of such loss,
liability, cost or expense so payable out of the related Subordinate Note
Custodial Account; and (iii) if such Serviced Mortgage Loan Group includes one
or more Serviced Non-Pooled Pari Passu Companion Loans, such loss, liability,
cost or expense shall be payable out of amounts on deposit in the relevant
Collection Account and the related Companion Note Custodial Account(s)
(withdrawals from those accounts to be made in accordance with the related
Mortgage Loan Group Intercreditor Agreement and pro rata according to the
respective outstanding principal balances of the Pooled Mortgage Loan and such
Serviced Non-Pooled Pari Passu Companion Loans included in such Serviced
Mortgage Loan Group).
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(b) In addition, none of the Master Servicers, the Primary Servicer
and the Special Servicers shall have any liability with respect to, and each of
the Master Servicers, the Primary Servicer and the Special Servicers shall be
entitled to rely, as to the truth of the statements made therein and the
correctness of the opinions expressed therein, on any certificates or opinions
furnished to, and accepted in good faith by, such Master Servicer, such Primary
Servicer or such Special Servicer, as the case may be, and conforming to the
requirements of this Agreement. Each of the Master Servicers, the Primary
Servicers and the Special Servicers may rely in good faith on information
provided to it by the other parties hereto (unless the provider and the
recipient of such information are the same Person or Affiliates) and by the
Borrowers and property managers, and will have no duty to investigate or verify
the accuracy thereof. Each of the Master Servicers and the Special Servicers 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) as contemplated by and in accordance with this
Agreement and reasonably believed or in good faith believed by such Master
Servicer, such Primary Servicer or such Special Servicer, as the case may be, to
be genuine and to have been signed or presented by the proper party or parties
and each of them may consult with counsel, in which case any written advice of
counsel 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. Furthermore, none of the Master Servicers, the Primary Servicers and
the Special Servicers shall have any liability under this Agreement for any
failure of any other such Person (or any other party to this Agreement) to
perform such Person's obligations or duties hereunder.
SECTION 6.04. Resignation of the Master Servicers and the Special
Servicers.
(a) Each of the Master Servicers and the Special Servicers may resign
from the obligations and duties hereby imposed on it, upon a determination that
its 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 (the other activities of such Master Servicer or such Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by such Master Servicer or such Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of a Master Servicer or a Special Servicer shall be evidenced by an Opinion of
Counsel to such effect which shall be delivered to the Trustee, with a copy to
the Certificate Administrator and the Controlling Class Representative (and each
affected Serviced Non-Pooled Mortgage Loan Noteholder). Unless applicable law
requires the resignation of a Master Servicer or a Special Servicer (as the case
may be) to be effective immediately, and the Opinion of Counsel delivered
pursuant to the prior sentence so states, no such resignation shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party in accordance with
Section 3.25 or Section 7.02 hereof; provided that, if no successor to such
Master Servicer or such Special Servicer, as the case may be, shall have been so
appointed and have accepted appointment within 90 days after such Master
Servicer or such Special Servicer, as the case may be, has given notice of such
resignation, the resigning Master Servicer or Special Servicer, as the case may
be, may petition any court of competent jurisdiction for the appointment of a
successor thereto.
(b) In addition, each of the Master Servicers and the Special
Servicers shall have the right to resign at any other time, provided that (i) a
willing successor thereto (including any such successor proposed by the
resigning party) has been found that is (a) reasonably acceptable to the
Trustee, (b) solely in the case of a successor to a Master Servicer, reasonably
acceptable to the Controlling Class Representative in its discretion (unless
such successor is on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or such successor is the other Master Servicer), (c) solely in
the case of a Loan Specific Special Servicer if it is a resigning Special
Servicer, acceptable to the related Serviced Mortgage Loan Group Controlling
Party in its discretion and (d) solely in the case of the General Special
Servicer if it is a resigning Special Servicer, acceptable to the Controlling
Class Representative in its discretion, (ii) the resigning party has consulted
with (although, except as provided for above, it shall not be required to have
obtained the approval of) the Controlling Class Representative with respect to
the identity and quality of its proposed successor unless such successor is the
other Master Servicer, (iii) the succession will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency for the Rated Certificates) and, in the
case of the applicable Master Servicer or applicable Special Servicer for each
Serviced Mortgage Loan Group
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that includes one or more Non-Pooled Pari Passu Companion Loans for which any
Non-Pooled Pari Passu Companion Loan Securities are then outstanding, if such
Serviced Mortgage Loan Group is then serviced and administered under this
Agreement, will not result in an Adverse Rating Event with respect to any class
of such Non-Pooled Pari Passu Companion Loan Securities (as confirmed in writing
to the Trustee by each applicable Rating Agency for such Non-Pooled Pari Passu
Companion Loan Securities), (iv) the resigning party pays all costs and expenses
in connection with such transfer, (v) the successor accepts appointment in
writing prior to the effectiveness of such resignation and (vi) the successor
affirms its assumption of the obligations of the resigning Master Servicer under
the Primary Servicing Agreements.
(c) None of the Master Servicers and the Special Servicers shall be
permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, none of the Master Servicers and
the Special Servicers shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
it hereunder. If, pursuant to any provision hereof, the duties of a Master
Servicer or a Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to such Master Servicer (including without
limitation, in the case of the Master Servicer that is the Servicer Report
Administrator, the Servicer Report Administrator Fee) or such Special Servicer,
as the case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor, except (in the case of the Special
Servicer) to the extent provided in Section 3.11(c).
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicers and the Special Servicers.
Each of the Master Servicers and the Special Servicers shall afford
the Depositor and the Trustee, upon reasonable notice, during normal business
hours access to all records maintained by it in respect of its rights and
obligations hereunder and access to such of its officers as are responsible for
such obligations. Upon reasonable request and as reasonably related to the
performance of the obligations of the Master Servicers and the Special Servicer,
as applicable, pursuant to this Agreement, each of the Master Servicers and the
Special Servicers shall furnish the Depositor and the Trustee with its most
recent publicly available annual audited financial statements (or, if not
available, the most recent publicly available audited annual financial
statements of its corporate parent) and such other information as is publicly
available regarding its business, affairs, property and condition, financial or
otherwise. Each of the Master Servicers and the Special Servicers may affix to
any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate in its reasonable discretion. The Depositor may,
but is not obligated to, enforce the obligations of any Master Servicer or
Special Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of any Master Servicer or a
Special Servicer hereunder or exercise the rights of a Master Servicer or a
Special Servicer hereunder; provided, however, that none of the Master Servicers
and the Special Servicers shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to act
by a Master Servicer or a Special Servicer and is not obligated to supervise the
performance of any Master Servicer or Special Servicer under this Agreement or
otherwise.
SECTION 6.06. Master Servicers, the Primary Servicers and Special
Servicers May Own Certificates.
Any Master Servicer, Primary Servicer, Special Servicer or Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not a Master Servicer, a Special Servicer or an Affiliate thereof. If,
at any time during which any Master Servicer, Special Servicer or Affiliate of a
Master Servicer or a Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, such
Master Servicer or such Special Servicer, as the case may be, proposes to take
any action (including for this purpose, omitting to take a particular action)
that is not expressly prohibited by the terms hereof and would not, in the
reasonable judgment of such Master Servicer or such Special Servicer (as the
case may be), violate the
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Servicing Standard, but that, if taken, might nonetheless, in the reasonable
judgment of such Master Servicer or such Special Servicer (as the case may be),
be considered by other Persons to violate the Servicing Standard, then such
Master Servicer or such Special Servicer, as the case may be, may (but need not)
seek the approval of the Certificateholders to such action by delivering to the
Certificate Administrator (with a copy to the Trustee) a written notice that (a)
states that it is delivered pursuant to this Section 6.06, (b) identifies the
Percentage Interest in each Class of Certificates beneficially owned by such
Master Servicer or such Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that such Master
Servicer or such Special Servicer, as the case may be, proposes to take. The
Certificate Administrator, upon receipt of such notice, shall forward it to the
Certificateholders (other than such Master Servicer and its Affiliates or such
Special Servicer and its Affiliates, as appropriate), together with a request
for approval by the Certificateholders of each such proposed action. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by such Master Servicer or its Affiliates or such Special Servicer or its
Affiliates, as the case may be) shall have consented in writing (with a copy to
each related Serviced Non-Pooled Mortgage Loan Noteholder, if a Serviced
Mortgage Loan Group is involved) to the proposal described in the written
notice, and if such Master Servicer or such Special Servicer, as the case may
be, shall act as proposed in the written notice, such action shall be deemed to
comply with the Servicing Standard. The Certificate Administrator shall be
entitled to reimbursement from the subject Master Servicer or the subject
Special Servicer, as applicable, for the reasonable expenses of the Certificate
Administrator incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that any Master Servicer or Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, but rather in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) with respect to a Master Servicer, any failure by such Master
Servicer to deposit into the Collection Account maintained by such Master
Servicer or (if it is the applicable Master Servicer for a Serviced
Mortgage Loan Group) a related Companion Note Custodial Account or related
Subordinate Note Custodial Account, any amount required to be so deposited
under this Agreement, which failure continues unremedied for one Business
Day following the date on which such deposit was first required to be made;
or
(ii) with respect to a Special Servicer, any failure by such
Special Servicer to deposit into the REO Account maintained by it or to
deposit, or remit to either Master Servicer for deposit, into a Collection
Account, Companion Note Custodial Account and/or Subordinate Note Custodial
Account, as applicable, any amount required to be so deposited or remitted
under this Agreement, which failure continues unremedied for one Business
Day following the date on which such deposit or remittance, as the case may
be, was first required to be made; or
(iii) any failure by a Master Servicer to remit to the
Certificate Administrator for deposit into the Distribution Account, on any
P&I Advance Date, the full amount of P&I Advances required to be made by
such Master Servicer on such date or, on any Master Servicer Remittance
Date, the full amount of the Master Servicer Remittance Amount and any
Compensating Interest Payment required to be remitted by such Master
Servicer on such date, which failure continues unremedied until 9:00 a.m.
(New York City time) on the related Distribution Date; provided, however,
that if a Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by such Master Servicer on any P&I Advance Date or Master
Servicer Remittance Date (without regard to any grace period), then such
Master Servicer shall pay to the Certificate Administrator, for the account
of the Certificate Administrator, interest on such late remittance at the
Reimbursement Rate from and including such P&I Advance Date or such Master
Servicer Remittance Date to but excluding the related Distribution Date; or
(iv) any failure by a Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of one Business Day following the date
on which notice shall have been given to such Master Servicer by the
Trustee as provided in Section 3.11(f); or
(v) any failure by a Special Servicer to timely make (or request
the applicable Master Servicer to make) any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade for a
period of one Business Day following the date on which notice has been
given to such Special Servicer by the Trustee as provided in Section
3.11(f); or
(vi) any failure on the part of a Master Servicer or a Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of such Master Servicer or such
Special Servicer, as the case may be, contained in this Agreement
(excluding Article XI, other than Section 11.11, Section 11.12 and/or
Section 11.13 at any time after the Trust is not required to report under
the Exchange Act), which failure continues unremedied for a period of 30
days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to such Master Servicer or such
Special Servicer, as the case may be, by any other party hereto or to such
Master Servicer or such Special Servicer, as the case may be, with a copy
to each other party hereto, or by the Holders of Certificates entitled to
at least 25% of the Voting
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Rights or, if affected by that failure, the applicable Serviced Non-Pooled
Noteholder; provided, however, that, with respect to any such failure that
is not curable within such 30-day period, such Master Servicer or such
Special Servicer, as the case may be, shall have an additional cure period
of 60 days to effect such cure so long as such Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such failure
within the initial 30-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) any breach on the part of a Master Servicer or a Special
Servicer of any representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders or the applicable Non-Pooled Subordinate Noteholder and
which 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 such Master Servicer or such Special Servicer, as the case may be,
by any other party hereto or to such Master Servicer or such Special
Servicer, as the case may be, with a copy to each other party hereto, or by
the Holders of Certificates entitled to at least 25% of the Voting Rights
or, if affected by such breach, the applicable Serviced Non-Pooled
Noteholder; provided, however, that, with respect to any such breach that
is not curable within such 30-day period, such Master Servicer or such
Special Servicer, as the case may be, shall have an additional cure period
of 60 days to effect such cure so long as such Master Servicer or such
Special Servicer, as the case may be, has commenced to cure such breach
within the initial 30-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(viii) 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 a
Master Servicer or a Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(ix) a Master Servicer or a 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 of or relating to it or of
or relating to all or substantially all of its property; or
(x) a Master Servicer or a Special 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
association or company action in furtherance of the foregoing; or
(xi) a Master Servicer or a Special Servicer receives actual
knowledge that Xxxxx'x has (A) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (B) placed one
or more Classes of Certificates on "watch status" in contemplation of
possible rating downgrade or withdrawal (and such "watch status" placement
shall not have been withdrawn by Xxxxx'x within 90 days of such actual
knowledge by the applicable Master Servicer or the applicable Special
Servicer, as the case may be), and, in case of either of clause (A) or (B),
citing servicing concerns with such Master Servicer or such Special
Servicer as the sole or a material factor in such rating action;
(xii) a Master Servicer is removed from S&P's Select Servicer
List as a U.S. Commercial Mortgage Master Servicer or a Special Servicer is
removed from S&P's Select Servicer List as a U.S. Commercial Mortgage
Special Servicer, as the case may be, and, in either case, is not
reinstated within 60 days and the ratings then assigned by S&P to any
Classes of Rated Certificates are downgraded, qualified or withdrawn
(including, without limitation, being placed on a negative credit watch) in
connection with such removal;
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(xiii) any failure by the applicable Master Servicer to timely
make any monthly remittance required to be made by it hereunder to a
Serviced Non-Pooled Mortgage Loan Noteholder related to a Mortgage Loan
Group for which such Master Servicer is the applicable Master Servicer; or
(xiv) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, 5 days after a failure by the applicable
Master Servicer to comply with any of its obligations under Article XI of
this Agreement and notice thereof to such Master Servicer from the Trustee
or the Depositor; provided, however, that if, following the Master
Servicer's failure to comply with any of such obligations under Section
11.03, 11.04, 11.05, 11.07, 11.08, 11.09, 11.10, 11.11, 11.12 or 11.13 on
or prior to the dates by which such obligations are to be performed
pursuant to, and as set forth in, such Sections, (a) such Master Servicer
subsequently complies with such obligations before the Trustee or the
Depositor gives written notice to it that it is terminated in accordance
with this subsection and (b) such Master Servicer's failure to comply does
not cause the Certificate Administrator 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 Form 8-K Filing Deadline, Form 10-D Filing Deadline or
Form 10-K Filing Deadline, then such failure to comply shall cease to be an
Event of Default under this Section 7.01 on the date on which such Form
8-K, Form 10-D or Form 10-K is so filed.
When a single entity acts as two or more of the capacities of the
Master Servicers and the Special Servicer, an Event of Default (other than an
event described in clauses (xi), (xii), (xiii) and (xiv) above) in one capacity
shall constitute an Event of Default in both or all such capacities.
(b) If any Event of Default with respect to any Master Servicer or
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and at the written direction of either the Holders of Certificates
entitled to not less than 25% of the Voting Rights or, alternatively, if an
Event of Default on the part of the General Special Servicer has occurred, the
Controlling Class Representative, the Trustee shall, terminate, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto), all of the rights and obligations (accruing from and after such notice)
of the Defaulting Party under this Agreement and in and to the Trust Fund (other
than as a Holder of any Certificate). From and after the receipt by the
Defaulting Party of such written notice, all of the responsibilities, duties,
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates, the Mortgage Loans or otherwise (other than as a
Holder of any Certificate or as a Non-Pooled Mortgage Loan Noteholder, if
applicable), shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, 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 (provided, however, that each of the Master
Servicers and the Special Servicers shall, if terminated pursuant to this
Section 7.01(b), continue to be obligated to pay and entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its members, managers, directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Each of the Master Servicers and the Special Servicers agrees
that, if it is terminated pursuant to this Section 7.01(b), it shall promptly
(and in any event no later than 20 days subsequent to its receipt of the notice
of termination) provide the Trustee with all documents and records requested
thereby to enable the Trustee to assume the functions hereunder of such Master
Servicer or such Special Servicer, as the case may be, and shall otherwise
cooperate with the Trustee in effecting the termination of the rights and
responsibilities hereunder of such Master Servicer or such Special Servicer, as
the case may be, including the transfer within five (5) Business Days to the
Trustee for administration by it of all cash amounts that at the time are or
should have been credited by a Master Servicer to its Collection Account or any
Companion Note Custodial Account (if such Master Servicer is the applicable
Master Servicer for the related Serviced Mortgage Loan Group) or Subordinate
Note Custodial Account (if such Master Servicer is the applicable Master
Servicer for the related Serviced Mortgage Loan Group), the Distribution Account
or any Servicing Account or Reserve Account held by it (if it is the Defaulting
Party) or by such Special Servicer to its REO Account, a Collection Account, any
Companion Note Custodial Account, any Subordinate Note Custodial Account or any
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Servicing Account or Reserve Account held by it (if it is the Defaulting Party)
or that are thereafter received by or on behalf of it with respect to any
Mortgage Loan or REO Property (provided, however, that if any Master Servicer or
Special Servicer is terminated pursuant to this Section 7.01(b), such Master
Servicer or such Special Servicer, as the case may be, shall continue to be
obligated to pay and entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its members, managers, directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Any costs or expenses
(including those of any other party hereto) incurred in connection with any
actions to be taken by a terminated Master Servicer or Special Servicer pursuant
to this paragraph shall be borne by such Master Servicer or such Special
Servicer, as the case may be (and, in the case of the Trustee's costs and
expenses, if not paid within a reasonable time, shall be borne by the Trust out
of the Collection Account).
Notwithstanding the foregoing, the applicable Master Servicer for any
Serviced Mortgage Loan Group shall not be terminated hereunder solely by reason
of an Event of Default under Section 7.01(a)(xiii) or by reason of any other
Event of Default that affects only a Serviced Non-Pooled Mortgage Loan
Noteholder. If an Event of Default under Section 7.01(a)(xiii) occurs on the
part of the applicable Master Servicer for any Serviced Mortgage Loan Group, or
if any other Event of Default occurs on the part of the applicable Master
Servicer for a Serviced Mortgage Loan Group and such Master Servicer is not
terminated pursuant to the provisions set forth above, any related Serviced
Non-Pooled Mortgage Loan Noteholder shall be entitled to require the applicable
Master Servicer to appoint, in accordance with Section 3.22, a Sub-Servicer, to
be selected by such Master Servicer, that will be responsible for primary
servicing such Serviced Mortgage Loan Group. In connection with the appointment
of a Sub-Servicer in accordance with this paragraph, if the applicable Serviced
Mortgage Loan Group includes one or more Serviced Non-Pooled Pari Passu
Companion Loans for which one or more classes of Non-Pooled Pari Passu Loan
Securities are outstanding that are then rated by S&P, either (A) such
Sub-Servicer shall be on S&P's Select Servicer List as a U.S. Commercial
Mortgage Master Servicer or (B) the applicable Master Servicer shall obtain, at
its own expense, a written confirmation from S&P to the effect that the
appointment of such Sub-Servicer will not result in an Adverse Rating Event with
respect to any class of such Non-Pooled Pari Passu Companion Loan Securities
rated by S&P. In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of the holder of any Serviced Non-Pooled Mortgage
Loan Noteholder under this paragraph.
(c) Notwithstanding Section 7.01(b) of this Agreement, if a Master
Servicer receives a notice of termination solely due to an Event of Default
under Section 7.01(a)(xi), (xii) or (xiv) and the terminated Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five (5) Business Days after such termination, then such Master
Servicer shall continue to serve as Master Servicer, if requested to do so by
the Trustee, and the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the terminated Master Servicer) solicit good
faith bids for the rights to master service the Mortgage Loans under this
Agreement for which the terminated Master Servicer is the applicable Master
Servicer from at least three (3) Persons qualified to act as successor Master
Servicer hereunder in accordance with Section 6.02 and Section 7.02 for which
the Trustee has received written confirmation from each Rating Agency for the
Rated Certificates that the appointment of such Person would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and, if the terminated Master Servicer is the applicable
Master Servicer for any Serviced Mortgage Loan Group that includes one or more
Serviced Non-Pooled Pari Passu Companion Loans and such Serviced Mortgage Loan
Group is then serviced and administered under this Agreement, written
confirmation from each applicable Rating Agency for the related Non-Pooled Pari
Passu Companion Loan Securities that the appointment of such Person would not
result in an Adverse Rating Event with respect to any class of such Non-Pooled
Pari Passu Companion Loan Securities rated by such applicable Rating Agency (any
such Person so qualified, a "Qualified Bidder") or, if three (3) Qualified
Bidders cannot be located, then from as many Persons as the Trustee can
determine are Qualified Bidders; provided, however, that (i) at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; (ii) prior to making such
solicitation, the Trustee or, upon request of the Trustee, the terminated Master
Servicer, shall have consulted with (although it shall not be required to have
obtained the approval of) the Controlling Class Representative with respect to
the identity and quality of each of the Persons from whom the Trustee is to
solicit bids; and (iii) the Trustee shall not be responsible if less than three
(3) or no Qualified Bidders submit bids for the right to master service the
subject Mortgage Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as
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defined below), as a condition of such bid, to enter into this Agreement as
successor Master Servicer with respect to the applicable Mortgage Loans, and to
agree to be bound by the terms hereof, within forty-five (45) days after the
receipt by the applicable Master Servicer of a notice of termination. The
Trustee shall solicit bids (i) on the basis of such successor Master Servicer
retaining all applicable Sub-Servicers to continue the primary servicing of the
applicable Serviced Mortgage Loans pursuant to the terms of the respective
Sub-Servicing Agreements and entering into a Sub-Servicing Agreement with the
terminated Master Servicer to service each of the Serviced Mortgage Loans for
which it was the applicable Master Servicer and not subject to a Sub-Servicing
Agreement at a sub-servicing fee rate per annum equal to, for each Serviced
Mortgage Loan serviced, the excess of the related Master Servicing Fee Rate
minus the sum of two basis points and the related Excess Servicing Fee Rate
(each, a "Servicing-Retained Bid") and (ii) on the basis of terminating each
applicable Sub-Servicing Agreement and each applicable Sub-Servicer (other than
a Designated Sub-Servicer and its Sub-Servicing Agreement) that it is permitted
to terminate in accordance with Section 3.22 and having no obligation to enter
into a Sub-Servicing Agreement with the terminated Master Servicer (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (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, if the
successful bid was a Servicing-Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above), no later
than forty-five (45) days after the termination of the terminated Master
Servicer. In no event shall the bid procedures under this subsection (c) purport
to offer the servicing right of any Primary Servicer or Designated Sub-Servicer
that is not then in default under its Primary Servicing Agreement or Designated
Subservicing Agreement.
(d) Upon the assignment and acceptance of the applicable master
servicing (including, in the case of an assignment of the rights of WFB or any
successor thereto as a Master Servicer, the servicer report administrative)
rights hereunder to and by the Successful Bidder, 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 "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing).
(e) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within forty-five (45) days after the related Master
Servicer received a notice of termination or no Successful Bidder was identified
within such forty-five (45) day period, the terminated Master Servicer shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(c). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time any Master Servicer or Special Servicer resigns
pursuant to Section 6.04(a) or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, subject to Section 3.25, be the successor in
all respects to such Master Servicer or such Special Servicer, as the case may
be, in its capacity as such under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto and arising thereafter placed on such Master
Servicer or such Special Servicer, as the case may be, by the terms and
provisions hereof, including, if a Master Servicer is the resigning or
terminated party, such Master Servicer's obligation to make Advances; provided,
however, that (i) any failure to perform such duties or responsibilities caused
by the failure of such Master Servicer or such Special Servicer, as the case may
be, to cooperate or to provide information or monies as required by Section 7.01
shall not be considered a default by the Trustee hereunder and (ii) in the case
of a terminated Master Servicer, the Trustee shall cease to act as successor
Master Servicer if an alternative successor is appointed pursuant to Section
7.01(c). Neither the Trustee nor any other successor shall be liable for any of
the representations and warranties of the resigning or terminated party or for
any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee or any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation which the resigning or
terminated party would have been entitled to for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, if it is unwilling to so act, the Trustee may
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(and, if it is unable to so act, or if the Trustee is not approved as an
acceptable master servicer or special servicer, as the case may be, by each
Rating Agency, or if the Holders of Certificates entitled to a majority of all
the Voting Rights (or, alternatively, if an Event of Default on the part of the
General Special Servicer has occurred, the Controlling Class Representative) so
requests in writing, the Trustee shall), promptly appoint, or petition a court
of competent jurisdiction to appoint, any established and qualified institution
as the successor to the resigning or terminated Master Servicer or Special
Servicer, as the case may be, hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of such Master Servicer or such
Special Servicer, as the case may be, hereunder; provided, however, that (i)
such appointment does not result in an Adverse Rating Event with respect to any
Class of Rated Certificates (as confirmed in writing to the Trustee by each
applicable Rating Agency for the Rated Certificates) and (if such Master
Servicer or Special Servicer is the applicable Master Servicer or the applicable
Special Servicer for a Serviced Mortgage Loan Group that is then serviced and
administered under this Agreement and includes one or more Serviced Non-Pooled
Pari Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are then outstanding) also does not result in an Adverse Rating Event
with respect to any class of related Non-Pooled Pari Passu Companion Loan
Securities (as confirmed in writing to the Trustee by each applicable Rating
Agency for such Non-Pooled Pari Passu Companion Loan Securities), as applicable;
(ii) if such successor (in the case of a successor (other than if the other
Master Servicer is such successor) to a resigning or terminated Master Servicer)
is not on S&P's Select Servicer List as a U.S. Commercial Mortgage Master
Servicer, such successor is reasonably acceptable to the Controlling Class
Representative and, if such successor (other than if such successor is the other
Master Servicer) is on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer, the Controlling Class Representative shall have been consulted
with respect to the identity of (although it need not have approved) such
successor and (iii) in the case of a Loan Specific Special Servicer, such
successor is acceptable to the related Serviced Mortgage Loan Group Controlling
Party in its sole discretion. No appointment of a successor to any Master
Servicer or Special Servicer hereunder shall be effective until the assumption
by such successor of all its responsibilities, duties and liabilities hereunder,
and pending such appointment and assumption, the Trustee shall act in such
capacity as hereinabove provided. In connection with any such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
If the Trustee or an Affiliate acts pursuant to this Section 7.02 as
successor to the resigning or terminated Master Servicer, it may reduce such
Master Servicer's Excess Servicing Fee Rate to the extent that its or such
Affiliate's compensation as successor Master Servicer would otherwise be below
the market rate servicing compensation. If the Trustee elects to appoint a
successor to the resigning or terminated Master Servicer other than itself or an
Affiliate pursuant to this Section 7.02, it may reduce such Master Servicer's
Excess Servicing Fee Rate to the extent reasonably necessary (in the sole
discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer that meets the requirements of this Section 7.02.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of a Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of a Master Servicer or Special
Servicer pursuant to Section 7.01, any appointment of a successor to a Master
Servicer or Special Servicer pursuant to Section 6.02, 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
3.25, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to each
Serviced Non-Pooled Mortgage Loan Noteholder.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
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SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi) or clause (xii)
of Section 7.01(a) may be waived only by all of the Certificateholders of the
affected Classes and in any event such Holders shall not be entitled to waive
any Event of Default under clause (xiii) of Section 7.01(a) (which may be waived
only by the applicable Serviced Non-Pooled Mortgage Loan Noteholder) or clause
(xiv) of Section 7.01(a) (which may be waived only by the Depositor). Upon any
such waiver of an Event of Default, and payment to the Trustee and the
Certificate Administrator of all reasonable costs and expenses incurred by the
Trustee and the Certificate Administrator in connection with such default prior
to its waiver (which costs shall be paid by the party requesting such waiver),
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust and (in the case of
any matter affecting a Serviced Mortgage Loan Group) on behalf of the related
Serviced Non-Pooled Mortgage Loan Noteholder(s), to take all actions now or
hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders and such noteholder(s) (including the institution and
prosecution of all judicial, administrative and other proceedings and the
filings of proofs of claim and debt in connection therewith). Except as
otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR
AND THE TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty. The Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, the Custodian, the Certificate Administrator or the Tax Administrator,
as applicable, which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall examine them to determine whether they conform to the
requirements of this Agreement. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall take such action as it deems appropriate to have the
instrument corrected. The Trustee, the Custodian, the Certificate Administrator
or the Tax Administrator, as applicable, shall not be responsible or liable for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, a Master
Servicer, a Special Servicer, any actual or prospective Certificateholder or
Certificate Owner or any Rating Agency, and accepted by the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee, the Tax Administrator or the Certificate Administrator from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee.
(ii) In the absence of bad faith on the part of the Trustee, the
Certificate Administrator or the Tax Administrator, the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee, the Certificate Administrator or the Tax Administrator, as
applicable, and conforming to the requirements of this Agreement.
(iii) None of the Trustee, the Certificate Administrator or the
Tax Administrator shall be liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of such entity
unless it shall be proved that such entity was negligent in ascertaining
the pertinent facts.
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(iv) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by the Trustee, in good faith in
accordance with the terms of this Agreement and the direction of Holders of
Certificates entitled to at least 25% (or, as to any particular matter, any
higher percentage as may be specifically provided for hereunder) of the
Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Agreement.
(v) Neither the Certificate Administrator nor the Trustee shall
be required to take action with respect to, or be deemed to have notice or
knowledge of, any default or Event of Default (other than an Event of
Default under Section 7.01(a)(xi) or (xii)) or a Master Servicer's failure
to deliver any monies, including P&I Advances, or to provide any report,
certificate or statement, to the Trustee, the Certificate Administrator or
the Tax Administrator, as applicable, when required pursuant to this
Agreement) unless a Responsible Officer of the Trustee or the Certificate
Administrator shall have received written notice or otherwise have actual
knowledge thereof. Otherwise, the Trustee and the Certificate Administrator
may conclusively assume that there is no such default or Event of Default.
(vi) Subject to the other provisions of this Agreement, and
without limiting the generality of this Section 8.01, none of the Trustee,
the Certificate Administrator or the Tax Administrator shall have any duty,
except, in the case of the Trustee, as expressly provided in Section
2.01(c) or Section 2.01(e) or in its capacity as successor to a Master
Servicer or a Special Servicer, (A) to cause any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security
interest, or to cause the maintenance of any such recording or filing or
depositing or to any re-recording, refiling or redepositing of any thereof,
(B) to cause the maintenance of any insurance, (C) to confirm or verify the
truth, accuracy or contents of any reports or certificates of either Master
Servicer, any Special Servicer, any actual or prospective or any
Certificateholder or Certificate Owner or any Rating Agency, delivered to
the Trustee, the Certificate Administrator or the Tax Administrator
pursuant to this Agreement reasonably believed by the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, to be
genuine and without error and to have been signed or presented by the
proper party or parties, (D) subject to Section 10.01(f), to see to the
payment or discharge of any tax levied against any part of the Trust Fund
other than from funds available in the Collection Accounts or the
Distribution Account, and (E) to see to the payment of any assessment or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other
than from funds available in a Collection Account or the Distribution
Account (provided that such assessment, charge, lien or encumbrance did not
arise out of the Trustee's, the Certificate Administrator's or the Tax
Administrator's, as applicable, willful misfeasance, bad faith or
negligence).
(vii) For as long as the Person that serves as the Trustee, the
Certificate Administrator or the Tax Administrator hereunder also serves as
Custodian and/or Certificate Registrar, the protections, immunities and
indemnities afforded to that Person in its capacity as Trustee, Certificate
Administrator or Tax Administrator, as applicable, hereunder shall also be
afforded to such Person in its capacity as Custodian and/or Certificate
Registrar, as the case may be.
(viii) If the same Person is acting in two or more of the
capacities of Trustee, Certificate Administrator, Tax Administrator,
Custodian or Certificate Registrar, then any notices required to be given
by such Person in one such capacity shall be deemed to have been timely
given to itself in any other such capacity.
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator.
Except as otherwise provided in Section 8.01:
(i) the Trustee, the Certificate Administrator and the Tax
Administrator, may each rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of
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auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and without error and to have been
signed or presented by the proper party or parties;
(ii) the Trustee, the Certificate Administrator and the Tax
Administrator may each consult with counsel and any written advice or
opinion of such counsel or 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
therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, unless such
Certificateholders shall have provided to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby satisfactory to the Trustee, in its reasonable
discretion; none of the Trustee, the Certificate Administrator or the Tax
Administrator shall be required to expend or risk its own funds (except to
pay expenses that could reasonably be expected to be incurred in connection
with the performance of its normal duties) 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; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
waived or cured, to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(iv) none of the Trustee, the Certificate Administrator or the
Tax Administrator shall be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to 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, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require an indemnity satisfactory to the
Trustee, in its reasonable discretion, against such expense or liability as
a condition to taking any such action;
(vi) except as contemplated by Section 8.06 and, with respect to
the Trustee alone, Section 8.14, none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to give any bond
or surety in respect of the execution of the trusts created hereby or the
powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested
in it by this Agreement, and the Certificate Administrator and the Tax
Administrator may each perform any of their respective duties hereunder,
either directly or by or through the Custodian or other agents or
attorneys-in-fact, provided that the use of the Custodian or other agents
or attorneys-in-fact shall not be deemed to relieve the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, of any
of its duties and obligations hereunder (except as expressly set forth
herein);
(viii) none of the Trustee, the Certificate Administrator or the
Tax Administrator shall be responsible for any act or omission of a Master
Servicer or a Special Servicer (unless, in the case of the Trustee, it is
acting as a Master Servicer or a Special Servicer, as the case may be) or
of the Depositor; and
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(ix) neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance
with any restriction on transfer imposed under Article V under this
Agreement or under applicable law with respect to any transfer of any
Certificate or any interest therein, other than to require delivery of the
certification(s) and/or Opinions of Counsel described in said Article
applicable with respect to changes in registration or record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement; and the Trustee and the Certificate Registrar shall have no
liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in
connection with changes in registration or record ownership in the
Certificate Register.
SECTION 8.03. The Trustee, the Certificate Administrator and the Tax
Administrator not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
statements attributed to, and the representations and warranties of, the
Trustee, the Certificate Administrator and/or the Tax Administrator in Article
II, and the signature of the Certificate Registrar set forth on each outstanding
Certificate) shall not be taken as the statements of the Trustee, the
Certificate Administrator or the Tax Administrator, and none of the Trustee, the
Certificate Administrator or the Tax Administrator assumes any responsibility
for their correctness. None of the Trustee, the Certificate Administrator or the
Tax Administrator makes any representation as to the validity or sufficiency of
this Agreement (except as regards the enforceability of this Agreement against
it) or of any Certificate (other than as to the signature of the Trustee set
forth thereon) or of any Mortgage Loan or related document. None of the Trustee,
the Certificate Administrator or the Tax Administrator shall be accountable for
the use or application by the Depositor of any of the Certificates issued to it
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Pooled Mortgage
Loans to the Trust, or any funds (other than with respect to any funds held by
the Certificate Administrator) deposited in or withdrawn from the Collection
Account or any other account by or on behalf of the Depositor, a Master Servicer
or a Special Servicer (unless, in the case of the Trustee, it is acting in such
capacity). None of the Trustee, the Certificate Administrator or the Tax
Administrator shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee,
the Certificate Administrator or the Tax Administrator, as the case may be,
hereunder) or the validity, priority, perfection or sufficiency of any security,
lien or security interest granted to it hereunder or the filing of any financing
statements or continuation statements, except to the extent set forth in Section
2.01(c) and Section 2.01(e) or to the extent the Trustee is acting as a Master
Servicer or a Special Servicer and such Master Servicer or such Special
Servicer, as the case may be, would be so responsible hereunder. Except as
contemplated by Section 12.02(a), none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to record this
Agreement.
SECTION 8.04. The Trustee, the Certificate Administrator and the Tax
Administrator May Own Certificates.
The Trustee (in its individual or any other capacity), the Certificate
Administrator or the Tax Administrator or any of their respective Affiliates may
become the owner or pledgee of Certificates with (except as otherwise provided
in the definition of "Certificateholder") the same rights it would have if it
were not the Trustee, the Certificate Administrator or the Tax Administrator or
one of their Affiliates, as the case may be.
SECTION 8.05. Fees and Expenses of the Trustee, the Certificate
Administrator and the Tax Administrator; Indemnification of and
by the Trustee, the Certificate Administrator and the Tax
Administrator.
(a) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account, out of general collections on the Pooled
Mortgage Loans and REO Properties on deposit therein, prior to any distributions
to be made therefrom to Certificateholders on such date, and pay to itself all
Certificate Administrator Fees,
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to the Trustee all Trustee Fees and to the Servicer Report Administrator all
Servicer Report Administrator Fees, in each case earned in respect of the Pooled
Mortgage Loans and any successor REO Pooled Mortgage Loans through the end of
the then most recently ended calendar month as compensation for all services
rendered by the Trustee and the Servicer Report Administrator, respectively,
hereunder. As to each Pooled Mortgage Loan and REO Pooled Mortgage Loan, the
Trustee Fee, the Certificate Administrator Fee and the Servicer Report
Administrator Fee shall accrue during each calendar month, commencing with June
2006, at the Trustee Fee Rate, the Certificate Administrator Fee Rate and the
Servicer Report Administrator Fee Rate, respectively, on a principal amount
equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage
Loan, as the case may be, immediately following the Distribution Date in such
calendar month (or, in the case of June 2006, on a principal amount equal to the
Cut-off Date Principal Balance of the particular Mortgage Loan). The Trustee
Fee, the Certificate Administrator Fee and the Servicer Report Administrator Fee
accrued during each calendar month shall be payable in the next succeeding
calendar month. With respect to each Pooled Mortgage Loan and REO Pooled
Mortgage Loan, the Trustee Fee, the Certificate Administrator Fee and the
Servicer Report Administrator Fee shall be calculated on the same Interest
Accrual Basis as is applicable to the accrual or deemed accrual of interest on
such Mortgage Loan or REO Mortgage Loan, as the case may be. The Trustee Fee
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), the Certificate Administrator
Fee and the Tax Administrator Fee shall constitute the sole compensation of the
Trustee, the Certificate Administrator and the Tax Administrator, respectively,
for such services to be rendered by it. The Certificate Administrator shall be
responsible for the payment of the Tax Administrator Fee.
Notwithstanding the prior paragraph, if and to the extent that any
loss, liability, cost or expense that is, pursuant to the prior paragraph,
required to be borne by the Trust out of the Distribution Account or a
Collection Account, relates to any Mortgage Loan that is part of a Serviced
Mortgage Loan Group, (i) such loss, liability, cost or expense shall be payable
out of amounts on deposit in the relevant Collection Account, any related
Companion Note Custodial Account(s) and any related Subordinate Note Custodial
Account(s) collectively, prior to payment from funds in the Distribution Account
or a Collection Account that are unrelated to such Serviced Mortgage Loan Group;
(ii) if such Serviced Mortgage Loan Group includes one or more Serviced
Non-Pooled Subordinate Loans, such loss, liability, cost or expense shall be
payable out of amounts on deposit in the related Subordinate Note Custodial
Account and shall be payable out of the Distribution Account or a Collection
Account or Companion Note Custodial Account only to the extent that amounts
recoverable on the related Serviced Non-Pooled Subordinate Loan(s) are
insufficient to cover the portion of such loss, liability, cost or expense so
payable out of the related Subordinate Note Custodial Account; and (iii) if such
Serviced Mortgage Loan Group includes one or more Serviced Non-Pooled Pari Passu
Companion Loans, such loss, liability, cost or expense shall be payable out of
amounts on deposit in the relevant Collection Account and the related Companion
Note Custodial Account(s) (withdrawals from those accounts to be made in
accordance with the related Mortgage Loan Group Intercreditor Agreement and pro
rata according to the respective outstanding principal balances of the Pooled
Mortgage Loan and such Serviced Non-Pooled Pari Passu Companion Loans included
in such Serviced Mortgage Loan Group).
(b) The Trustee, the Certificate Administrator and the Tax
Administrator and any of their respective directors, officers, employees, agents
or affiliates are entitled to be indemnified and held harmless out of the
Collection Accounts and/or the Distribution Account, as and to the extent
provided in Section 3.05, for and against any loss, liability, claim or expense
(including costs and expenses of litigation, and of investigation, reasonable
counsel fees, damages, judgments and amounts paid in settlement) arising out of,
or incurred in connection with, this Agreement, the Certificates, the Mortgage
Loans (unless, in the case of the Trustee, it incurs any such expense or
liability in the capacity of successor to a Master Servicer or a Special
Servicer (as the case may be), in which case such expense or liability will be
reimbursable thereto in the same manner as it would be for any other Master
Servicer or Special Servicer, as the case may be) or any act or omission of the
Trustee, the Certificate Administrator or the Tax Administrator relating to the
exercise and performance of any of the rights and duties of the Trustee, the
Certificate Administrator or the Tax Administrator hereunder; provided, however,
that none of the Trustee, the Certificate Administrator or the Tax Administrator
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
allocable overhead, such as costs for office space, office equipment, supplies
and related expenses, employee salaries and related expenses and similar
internal costs and expenses, (2) any cost or expense that does not constitute an
"unanticipated expense" within the meaning of Treasury Regulations
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Section 1.860G-1(b)(3)(ii), (3) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (4) any loss, liability,
claim or expense incurred by reason of any breach on the part of the Trustee,
the Certificate Administrator or the Tax Administrator of any of their
respective representations, warranties or covenants contained herein or any
willful misconduct, bad faith, fraud or negligence in the performance of, or
negligent disregard of, the Trustee's, the Certificate Administrator's or the
Tax Administrator's obligations and duties hereunder.
(c) The Master Servicers and the Special Servicers each shall
indemnify the Trustee, the Certificate Administrator and the Tax Administrator
(each in their respective capacity as such and in their individual capacity) for
and hold each of them harmless against any loss, liability, claim or expense
that is a result of such Master Servicer's or such Special Servicer's, as the
case may be, negligent acts or omissions in connection with this Agreement,
including the negligent use by such Master Servicer or such Special Servicer, as
the case may be, of any powers of attorney delivered to it by the Trustee
pursuant to the provisions hereof and the Mortgage Loans serviced by such Master
Servicer or such Special Servicer, as the case may be; provided, however, that,
if the Trustee, the Certificate Administrator or the Tax Administrator has been
reimbursed for such loss, liability, claim or expense pursuant to Section
8.05(b), then the indemnity in favor of such Person provided for in this Section
8.05(c) with respect to such loss, liability, claim or expense shall be for the
benefit of the Trust.
(d) Each of the Trustee, the Certificate Administrator and the Tax
Administrator shall indemnify each of the Master Servicers and each Special
Servicer (each in their respective capacity as such and in their individual
capacity) for and hold each of them harmless against any loss, liability, claim
or expense that is a result of the Trustee's, the Certificate Administrator's or
the Tax Administrator's, as the case may be, negligent acts or omissions in
connection with this Agreement; provided, however, that if a Master Servicer or
a Special Servicer has been reimbursed for such loss, liability, claim or
expense pursuant to Section 6.03, then the indemnity in favor of such Person
otherwise provided for in this Section 8.05(d) with respect to such loss,
liability, claim or expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this Agreement
or the resignation or removal of the Trustee, the Certificate Administrator, the
Tax Administrator, either Master Servicer or any Special Servicer as regards
rights and obligations prior to such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for the Trustee, the
Certificate Administrator and the Tax Administrator.
The Trustee, the Certificate Administrator and the Tax Administrator
hereunder each shall at all times be a corporation, bank, trust company or
association that: (i) is organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia and,
in the case of the Trustee, authorized under such laws to exercise trust powers;
(ii) has a combined capital and surplus of at least $50,000,000; and (iii) is
subject to supervision or examination by federal or state authority. If such
corporation, bank, trust company or 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, bank, trust company or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In addition: (i) the
Trustee shall at all times meet the requirements of Section 26(a)(1) of the
Investment Company Act; and (ii) neither the Certificate Administrator nor the
Tax Administrator may have any affiliations or act in any other capacity with
respect to the transactions contemplated hereby that would cause the Underwriter
Exemption to be unavailable with respect to any Class of Certificates as to
which it would otherwise be available. Furthermore, the Trustee, the Certificate
Administrator and the Tax Administrator shall at all times maintain a long-term
unsecured debt rating of at least "Aa3" from Xxxxx'x and "A+" from S&P and a
short-term unsecured debt rating from each Rating Agency of at least "P-1" in
the case of Xxxxx'x and "A-1" in the case of S&P (or, in the case of any Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating Agency and (if a
Serviced Mortgage Loan Group is then serviced and administered under this
Agreement and includes one or more Serviced Non-Pooled Pari Passu Companion
Loans for which any Non-Pooled Pari Passu Companion Loan Securities are then
outstanding) also will not result in an Adverse Rating Event with respect to any
class of related Non-Pooled Pari Passu Companion Loan Securities, in each case
as confirmed in writing to the Trustee, the Certificate Administrator, the Tax
Administrator and the Depositor by each applicable Rating Agency); provided that
the Trustee shall not cease to be eligible to serve as such based on a failure
to satisfy such rating requirements so long as either: (i) the Trustee maintains
a long-term unsecured debt rating of no less than "Baa2" from Xxxxx'x and "BBB"
from S&P (or, in the case of any Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and (if a Serviced Mortgage Loan Group
is then serviced and administered under this Agreement and includes one or more
Serviced Non-Pooled Pari Passu Companion Loans for which any Non-Pooled Pari
Passu Companion Loan Securities are then outstanding) also will not result in an
Adverse Rating Event with respect to any class of related Non-Pooled Pari Passu
Companion Loan Securities, in each case as confirmed in writing to the Trustee,
the
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Certificate Administrator, the Tax Administrator and the Depositor by each
applicable Rating Agency), and a Fiscal Agent meeting the requirements of
Section 8.13 has been appointed by the Trustee and is then currently serving in
such capacity; or (ii) the Trustee maintains a long-term unsecured debt rating
of no less than "A1" from Xxxxx'x and "A" from S&P (or, in the case of any
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates rated by such Rating Agency and
(if a Serviced Mortgage Loan Group is then serviced and administered under this
Agreement and includes one or more Serviced Non-Pooled Pari Passu Companion
Loans for which any Non-Pooled Pari Passu Companion Loan Securities are then
outstanding) also will not result in an Adverse Rating Event with respect to any
class of related Non-Pooled Pari Passu Companion Loan Securities, in each case
as confirmed in writing to the Trustee, the Certificate Administrator, the Tax
Administrator and the Depositor by each applicable Rating Agency) and an Advance
Security Arrangement meeting the requirements of Section 8.15 has been
established by the Trustee and is then currently being maintained. In case at
any time the Trustee, the Certificate Administrator or the Tax Administrator
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee, the Certificate Administrator or the Tax Administrator, as
applicable, shall resign immediately in the manner and with the effect specified
in Section 8.07. The corporation, bank, trust company or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Pooled Mortgage Loan Sellers, the Master Servicers, the Special Servicers and
their respective Affiliates; provided, however, that none of (i) the Depositor,
(ii) any Person involved in the organization or operation of the Depositor or
the Trust, (iii) a Master Servicer or Special Servicer (except during any period
when the Trustee has assumed the duties of such Master Servicer or Special
Servicer (as the case may be) pursuant to Section 7.02, (iv) any Pooled Mortgage
Loan Seller or (v) any Affiliate of any of them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of the Trustee, the Certificate
Administrator and the Tax Administrator.
(a) The Trustee, the Certificate Administrator and the Tax
Administrator each may at any time resign and be discharged from their
respective obligations created hereunder by giving written notice thereof to the
other such parties, the Depositor, the Master Servicers, the Special Servicers,
the Rating Agencies and all the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee,
certificate administrator or tax administrator, as the case may be, meeting the
eligibility requirements of Section 8.06 by written instrument, in duplicate,
which instrument shall be delivered to the resigning Trustee, Certificate
Administrator or Tax Administrator, as the case may be, and to the successor
trustee, certificate administrator or tax administrator, as the case may be. A
copy of such instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee, certificate
administrator or tax administrator, as the case may be, shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, Certificate Administrator or Tax
Administrator, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee, certificate
administrator or tax administrator, as the case may be.
(b) If at any time the Trustee, the Certificate Administrator or the
Tax Administrator shall cease to be eligible in accordance with the provisions
of Section 8.06 and shall fail to resign after written request therefor by the
Depositor or a Master Servicer, or if at any time the Trustee, the Certificate
Administrator or the Tax Administrator shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or a receiver of the Trustee, the
Certificate Administrator or the Tax Administrator or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee,
the Certificate Administrator or the Tax Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee's, Certificate Administrator's or Tax Administrator's
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continuing to act in such capacity would result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by a Rating Agency for the
Rated Certificates, as confirmed in writing to the Depositor by each applicable
Rating Agency, then the Depositor may (and, if it fails to do so within 10
Business Days, PAR or any successor thereto as Master Servicer shall as soon as
practicable) remove the Trustee, the Certificate Administrator or the Tax
Administrator, as the case may be, and appoint a successor trustee, certificate
administrator or tax administrator, as the case may be, by written instrument,
in duplicate, which instrument shall be delivered to the Trustee, the
Certificate Administrator or the Tax Administrator, as the case may be, so
removed and to the successor trustee, certificate administrator or tax
administrator, as the case may be. A copy of such instrument shall be delivered
to the other parties hereto and to the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to more than 50% of the
Voting Rights may at any time remove the Trustee, Certificate Administrator or
Tax Administrator and appoint a successor trustee, certificate administrator or
tax administrator, as the case may be, by written instrument or instruments
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, one complete set
to the Trustee, Certificate Administrator or Tax Administrator, as the case may
be, so removed, and one complete set to the successor so appointed. All expenses
incurred by the Trustee in connection with its transfer of the Mortgages Files
to a successor trustee following the removal of the Trustee without cause
pursuant to this Section 8.07(c), shall be reimbursed to the removed Trustee
within 30 days of demand therefor, such reimbursement to be made by the
Certificateholders that terminated the Trustee. A copy of such instrument shall
be delivered to the other parties hereto and to the remaining Certificateholders
by the successor so appointed.
(d) Any resignation or removal of the Trustee, the Certificate
Administrator or the Tax Administrator and appointment of a successor trustee,
certificate administrator or tax administrator, as the case may be, pursuant to
any of the provisions of this Section 8.07 shall not become effective until (i)
acceptance of appointment by the successor trustee, certificate administrator or
tax administrator, as the case may be, as provided in Section 8.08 and (ii) if
the successor trustee, certificate administrator or tax administrator, as the
case may be, does not have a long-term unsecured debt rating of at least "Aa3"
from Xxxxx'x and "A+" from S&P and a short-term unsecured debt rating from each
Rating Agency of at least "P-2" in the case of Xxxxx'x and "A-1" in the case of
S&P, the Trustee and the Depositor have received written confirmation from each
Rating Agency for the Rated Certificates that has not so assigned such a rating,
to the effect that the appointment of such successor trustee, certificate
administrator or tax administrator, as the case may be, shall not result in an
Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and (if a Serviced Mortgage Loan Group is then serviced and
administered under this Agreement and includes one or more Serviced Non-Pooled
Pari Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are then outstanding) also will not result in an Adverse Rating Event
with respect to any class of related Non-Pooled Pari Passu Companion Loan
Securities.
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax
Administrator.
(a) Any successor trustee, certificate administrator or tax
administrator appointed as provided in Section 8.07 shall execute, acknowledge
and deliver to the Depositor, each Master Servicer, each Special Servicer and
its predecessor trustee, certificate administrator or tax administrator, as the
case may be, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee, certificate administrator
or tax administrator, as the case may be, shall become effective and such
successor trustee, certificate administrator or tax administrator, 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 the like effect as if originally named as trustee, certificate
administrator or tax administrator herein. If the Trustee is being replaced, the
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, each Master
Servicer, each Special Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
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(b) No successor trustee, certificate administrator or tax
administrator shall accept appointment as provided in this Section 8.08 unless
at the time of such acceptance such successor trustee, certificate administrator
or tax administrator, as the case may be, shall be eligible under the provisions
of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee, certificate
administrator or tax administrator as provided in this Section 8.08, such
successor trustee, certificate administrator or tax administrator, as the case
may be, shall mail notice of the succession of such trustee, certificate
administrator or tax administrator hereunder to the Depositor, the
Certificateholders and the other parties hereto.
SECTION 8.09. Merger or Consolidation of the Trustee, the Certificate
Administrator or the Tax Administrator.
Any entity into which the Trustee, Certificate Administrator or Tax
Administrator may be merged or converted or with which it may be consolidated or
any entity resulting from any merger, conversion or consolidation to which the
Trustee, Certificate Administrator or Tax Administrator shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, Certificate
Administrator or Tax Administrator, shall be the successor of the Trustee,
Certificate Administrator or Tax Administrator, as the case may be, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06,
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 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
applicable Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
applicable Master Servicer and the Trustee may consider necessary or desirable.
If the applicable Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default in respect of the applicable Master Servicer shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06, and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all 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 or co-trustee
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
when acting as a Master Servicer, Special Servicer, Certificate Administrator or
Tax Administrator 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 Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) 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 or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. 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.
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(d) Any separate trustee or co-trustee 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 or
co-trustee 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.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, at its own expense, appoint any Person with
appropriate experience as a document custodian to act as Custodian hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Custodian, the Trustee agrees to act in such capacity in
accordance with the terms hereof. The appointment of a Custodian shall not
relieve the Trustee from such entity's obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of the Custodian. The
Custodian shall be subject to the same standards of care, limitations on
liability and rights to indemnity as the Trustee, and the provisions of Sections
8.01, 8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the
Custodian to the same extent that they apply to the Trustee. Any Custodian
appointed in accordance with this Section 8.11 may at any time resign by giving
at least 30 days' advance written notice of resignation to the Certificate
Administrator, the Trustee, each Master Servicer, each Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Custodian
appointed in accordance with this Section 8.11 by giving written notice of
termination to such Custodian, with a copy to the Certificate Administrator,
each Master Servicer, each Special Servicer and the Depositor. Each Custodian
shall comply with the requirements for Trustees set forth in Section 8.06, shall
not be the Depositor, any Pooled Mortgage Loan Seller or any Affiliate of the
Depositor or any Pooled Mortgage Loan Seller, and shall have in place a fidelity
bond and errors and omissions policy, each in such form and amount as is
customarily required of custodians acting on behalf of Xxxxxxx Mac or Xxxxxx
Mae.
SECTION 8.12. Access to Certain Information.
(a) The Trustee and the Custodian shall each afford to the Depositor,
the Underwriters, each Master Servicer, each Primary Servicer, each Special
Servicer, the Controlling Class Representative and each Rating Agency and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any documentation regarding the Pooled Mortgage Loans or the other assets of the
Trust Fund that are in its possession or within its control. Such access shall
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Trustee or the Custodian, as
the case may be, designated by it.
(b) The Trustee (or, in the case of the items referenced in clause
(ix) below, the Custodian, or in the case of the items referenced in clauses
(i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of
the items referenced in clause (xii), both the Certificate Administrator and the
Trustee) shall maintain at its offices or the offices of a Custodian and, upon
reasonable prior written request and during normal business hours, shall make
available, or cause to be made available, for review by the Depositor, the
Rating Agencies, the Certificate Administrator, the Custodian, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee (or, in
the case of the items referenced in clause (ix) below, the Custodian, or in the
case of the items referenced in clauses (i), (ii), (iii) and (viii), the
Certificate Administrator, or in the case of the items referenced in clause
(xi), both the Certificate Administrator and the Trustee) as a prospective
Transferee of a Certificate or an interest therein, originals and/or copies of
the following items (to the extent such items were prepared by or delivered to
the Trustee (or, in the case of the items referenced in clause (ix) below, the
Custodian, or in the case of the items referenced in clauses (i), (ii), (iii)
and (viii), the Certificate Administrator, or in the case of the items
referenced in clause (xi), both the Certificate Administrator and the Trustee):
(i) the Prospectus, the Private Placement Memorandum and any other disclosure
document relating to the Certificates, in the form most recently provided to the
Certificate Administrator by the Depositor or by any Person designated by the
Depositor; (ii) this Agreement, each Sub-Servicing Agreement
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delivered to the Certificate Administrator since the Closing Date, each Mortgage
Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments
and exhibits hereto or thereto; (iii) all Certificate Administrator Reports and
any files and reports comprising the CMSA Investor Reporting Package actually
delivered or otherwise made available to Certificateholders pursuant to Section
4.02(a) since the Closing Date; (iv) all Annual Performance Certifications
delivered by the Master Servicers and/or the Special Servicers to the
Certificate Administrator and the Trustee since the Closing Date and all
comparable certifications delivered to the Trustee with respect to comparable
servicing parties under the Non-Trust Servicing Agreements since the Closing
Date; (v) all Annual Accountants' Reports caused to be delivered by the Master
Servicers and/or the Special Servicers, respectively, to the Certificate
Administrator and the Trustee since the Closing Date and all comparable
accountant's reports delivered to the Trustee with respect to comparable
servicing parties under the Non-Trust Servicing Agreements since the Closing
Date; (vi) the most recent inspection report prepared by a Master Servicer or a
Special Servicer and delivered to the Trustee in respect of each Mortgaged
Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property
securing a Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable
servicing party under the related Non-Trust Servicing Agreement and delivered to
the Trustee since the Closing Date); (vii) any and all notices and reports
delivered to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that neither of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was satisfied; (viii) all files and reports comprising the CMSA Investor
Reporting Package delivered to the Certificate Administrator since the Closing
Date pursuant to Section 4.02(b); (ix) each of the Mortgage Files, including any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into or consented to by a Master Servicer or Special Servicer and
delivered to the Trustee or any Custodian pursuant to Section 3.20; (x) any and
all Officer's Certificates and other evidence delivered to or by the Trustee to
support its, a Master Servicer's or a Special Servicer's, as the case may be,
determination that any Advance was (or, if made, would be) a Nonrecoverable
Advance; (xi) to the extent not otherwise described in any of the foregoing
clauses (i) through (x), any and all reports, statements and other written or
electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan,
the related Mortgaged Property and/or the related Borrower, to the extent such
items were received by the applicable Master Servicer under this Agreement or by
any party to the related Non-Trust Servicing Agreement and (in either case)
delivered to the Trustee since the Closing Date; and (xii) any other information
that may be necessary to satisfy the requirements of subsection (d)(4)(i) of
Rule 144A under the Securities Act. The Certificate Administrator, the Trustee
or the Custodian, as applicable, shall provide, or cause to be provided, copies
of any and all of the foregoing items upon request of any of the parties set
forth in the previous sentence; however, except in the case of the Rating
Agencies and the Controlling Class Representative, the Certificate Administrator
or the Custodian shall be permitted to require payment of a sum sufficient to
cover the reasonable costs and expenses of providing such copies.
In connection with providing, or causing to be provided, access to or
copies of the items described in the preceding paragraph pursuant to this
Section 8.12(b), the Certificate Administrator, the Trustee or the Custodian, as
the case may be, shall require: (a) in the case of Certificateholders and
Certificate Owners, a written confirmation executed by the requesting Person
substantially in the form of Exhibit K-1 hereto (or such other form as may be
reasonably acceptable to the Certificate Administrator, the Trustee or the
Custodian, as the case may be) generally to the effect that such Person is a
Holder or Certificate Owner of Certificates and, subject to the last sentence of
this paragraph, will keep such information confidential (except that such
Certificateholder or Certificate Owner may provide such information to its
auditors, legal counsel and regulators and to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein (provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential)); and (b)
in the case of a prospective purchaser of a Certificate or an interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the
Certificate Administrator, the Trustee or the Custodian, as the case may be)
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information for use in
evaluating a possible investment in Certificates and, subject to the last
sentence of this paragraph, will otherwise keep such information confidential.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner need keep confidential any
information received from the Certificate Administrator, the Trustee or the
Custodian, as the case may be, pursuant to this Section 8.12(b) that has
previously been filed with the Commission, and the Certificate Administrator,
the Trustee or the
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Custodian, as the case may be, shall not require either of the certifications
contemplated by the preceding sentence in connection with providing any
information pursuant to this Section 8.12(b) that has previously been filed with
the Commission.
(c) None of the Trustee, the Custodian or the Certificate
Administrator shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) In order to satisfy the eligibility requirements of Section 8.06
(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 S&P (or "A+" from S&P, if such Fiscal
Agent's short-term unsecured debt rating is at least "A-1" by S&P) and "Aa3"
from Xxxxx'x (or, in the case of either Rating Agency, such other rating as
shall not result in an Adverse Rating Event with respect to any Class of
Certificates rated by such Rating Agency, as confirmed in writing by such Rating
Agency).
(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 8.13(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, either Master Servicer or
any Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section 8.13
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 8.06; 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 8.06). 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
8.13(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event with respect to any
Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the Serviced Non-Pooled Mortgage Loan Noteholders in
writing of the appointment, resignation or removal of any Fiscal Agent.
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SECTION 8.14. Representations and Warranties of any Fiscal Agent.
(a) Any Fiscal Agent shall hereby represent and warrant to each of the
other parties hereto and for the benefit of the Certificateholders and the
Serviced Non-Pooled Mortgage Loan Noteholders, as of the date of its
appointment, that:
(i) Such Fiscal Agent is a legal entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(ii) The execution and delivery of this Agreement by such Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by such Fiscal Agent, will not violate such Fiscal Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other material instrument to
which it is a party or by which it is bound, which default, in such Fiscal
Agent's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Fiscal Agent to perform its
obligations under this Agreement.
(iii) Such Fiscal Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of such Fiscal Agent, enforceable against such
Fiscal Agent in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) Such Fiscal Agent is not in violation of, and its 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, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in such Fiscal Agent's good faith and reasonable judgment, is
likely to affect materially and adversely the ability of such Fiscal Agent
to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by such Fiscal Agent of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of such Fiscal
Agent's knowledge, threatened against such Fiscal Agent that, if determined
adversely to such Fiscal Agent, would prohibit such Fiscal Agent from
entering into this Agreement or that, in such Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of such Fiscal Agent to perform its obligations under this
Agreement.
(b) The representations and warranties of any Fiscal Agent set forth
in Section 8.14(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any party
hereto of any breach of any of such representations and warranties, which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall given prompt written
notice to the other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.14(a).
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SECTION 8.15. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement not contemplated by Section 8.13 (any or all of the foregoing,
individually and collectively, an "Advance Security Arrangement") for purposes
of supporting its back-up advancing obligations hereunder; provided that any
Advance Security Arrangement shall be in such form and amount, and shall be
maintained in such manner, as (i) would permit the Trustee to act in such
capacity without an Adverse Rating Event in respect of any Class of Rated
Certificates and (if a Serviced Mortgage Loan Group is then serviced and
administered under this Agreement and includes one or more Serviced Non-Pooled
Pari Passu Companion Loans for which any Non-Pooled Pari Passu Companion Loan
Securities are then outstanding) also without an Adverse Rating Event with
respect to any class of related Non-Pooled Pari Passu Companion Loan Securities,
in each case as confirmed in writing to the Trustee and the Depositor by each
applicable Rating Agency, and (ii) would not result in an Adverse REMIC Event or
an Adverse Grantor Trust Event (as evidenced by an Opinion of Counsel addressed
and delivered to the Trustee, the Depositor and the Tax Administrator). The
Trustee may terminate any Advance Security Arrangement established by it only if
and when (i) the existence of such Advance Security Arrangement is no longer
necessary for the Trustee to satisfy the eligibility requirements of Section
8.06 or (ii) when such Trustee resigns or is removed as Trustee hereunder.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled
Mortgage Loans.
(a) Subject to Section 9.02 and the purchase right of the 0000
Xxxxxxxx Non-Pooled Subordinate Noteholder contained in the 0000 Xxxxxxxx
Intercreditor Agreement with respect to the 0000 Xxxxxxxx Pooled Mortgage Loan,,
the Trust and the respective obligations and responsibilities under this
Agreement of the parties hereto (other than the obligations of the Certificate
Administrator to provide for and make payments to Certificateholders as
hereafter set forth) shall terminate upon payment (or provision for payment) to
the Certificateholders of all amounts held by the Certificate Administrator on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, one or both of the Master Servicers or the General Special
Servicer (whose respective rights to effect such a purchase shall be subject to
the priorities and conditions set forth in subsection (b)) of all Pooled
Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund at a price (the "Termination
Price") equal to (A) the aggregate Purchase Price of all the Pooled Mortgage
Loans remaining in the Trust Fund (exclusive of any REO Pooled Mortgage
Loan(s)), plus (B) the appraised value of each REO Property (or, in the case of
any REO Property related to any Mortgage Loan Group, the beneficial interest of
the Trust Fund in such REO Property), if any, included in the Trust Fund, such
appraisal for such REO Property to be conducted by a Qualified Appraiser
selected by the General Special Servicer and approved by the Certificate
Administrator and the applicable Master Servicer, minus (C) if the purchaser is
a Master Servicer or the General Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any unpaid Advance
Interest in respect of such unreimbursed Advances and any unpaid servicing
compensation payable to such Person (which items shall be deemed to have been
paid or reimbursed to such Master Servicer or the General Special Servicer, as
the case may be, in connection with such purchase); (ii) the exchange by the
Sole Certificateholder(s) of all the Certificates for all Pooled Mortgage Loans
and each REO Property (or, in the case of any REO Property related to any
Mortgage Loan Group, the beneficial interest of the Trust Fund in such REO
Property) remaining in the Trust Fund; and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Pooled Mortgage
Loan or REO Property remaining in the Trust Fund; provided, however, 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. James's, living on the date
hereof.
(b) Any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, PAR (or its successor) as a Master
Servicer, WFB (or its successor) as a Master Servicer or the General Special
Servicer, in that order of preference, may at its option elect to purchase all
the Pooled Mortgage Loans and each REO Property (or, in the case of any REO
Property related to any Mortgage Loan Group, the beneficial interest of the
Trust Fund in such REO Property) remaining in the Trust Fund as contemplated by
clause (i) of Section 9.01(a) by giving written notice to the other parties
hereto (and, in the case of an election by a Master Servicer or the General
Special Servicer, to the Holders of the Controlling Class) no later than 60 days
prior to the anticipated date of purchase; provided, however, that:
(A) the aggregate Stated Principal Balance of the Mortgage Pool at
the time of such election is 1.0% or less of the Initial Pool
Balance;
(B) within 30 days after written notice of such election is so given,
no Person with a higher right of priority to make such an
election does so;
(C) if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of
the Pooled Mortgage Loans and any REO Properties remaining in the
Trust Fund, preference shall be given to the Controlling Class
Certificateholder
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or group of Controlling Class Certificateholders with the largest
Percentage Interest in the Controlling Class; and
(D) if a Master Servicer makes such an election, then the other
Master Servicer will have the option, by giving written notice to
the other parties hereto and to the Holders of the Controlling
Class no later than 30 days prior to the anticipated date of
purchase, to purchase all of the Pooled Mortgage Loans and
related REO Properties (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of
the Trust Fund in such REO Property) remaining in the Trust Fund
for which it is the applicable Master Servicer.
If the Trust is to be terminated in connection with the purchase of
all the Pooled Mortgage Loans and each REO Property (or, in the case of any REO
Property related to any Mortgage Loan Group, the beneficial interest of the
Trust Fund in such REO Property) remaining in the Trust Fund by any Controlling
Class Certificateholder(s), one or both of the Master Servicers or the General
Special Servicer, such Person(s) shall: (i) deposit, or deliver to the Master
Servicers for deposit, in the respective Collection Accounts (after the
Determination Date, and prior to the Master Servicer Remittance Date, relating
to the anticipated Final Distribution Date) an amount in immediately available
funds equal to the Termination Price (the portion thereof allocable to all such
Pooled Mortgage Loans and related REO Properties, other than those for which a
Master Servicer exercises its option under clause (D) above, to be deposited in
the other Master Servicer's Collection Account and the portion thereof allocable
to those for which a Master Servicer exercises its option under clause (D) above
to be deposited in the such Master Servicer's Collection Account); and (ii)
shall reimburse all of the parties hereto (other than itself, if applicable) for
all reasonable out-of-pocket costs and expenses incurred by such parties in
connection with such purchase. On the Master Servicer Remittance Date for the
Final Distribution Date, each Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred by it to such account on such
Master Servicer Remittance Date from such Master Servicer's Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in such Collection Account that would otherwise be held for
future distribution. Upon confirmation that such deposits and reimbursements
have been made, the Trustee shall release or cause to be released to the
purchasing party (or its designee) the Mortgage Files for the remaining Pooled
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the purchasing party as shall be necessary to
effectuate transfer of the remaining Pooled Mortgage Loans and REO Properties to
the purchasing party (or its designee).
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates is reduced to zero, the Sole Certificateholder(s) shall
have the right to exchange all of the Certificates for all of the Pooled
Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) by giving written notice to all the parties hereto no later than
60 days prior to the anticipated date of exchange. In the event that the Sole
Certificateholder(s) elect(s) to exchange all of the Certificates for all of the
Pooled Mortgage Loans and each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, such Sole Certificateholder(s), not
later than the Business Day prior to the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in each Collection
Account an amount in immediately available funds equal to all amounts then due
and owing to the Depositor, each Master Servicer, each Primary Servicer, each
Special Servicer, the Certificate Administrator, the Tax Administrator and/or
the Trustee hereunder (and their respective agents) that may be withdrawn from
such Collection Account, pursuant to Section 3.05(a), or (without duplication
between the Collection Accounts) that may be withdrawn from the Distribution
Account, pursuant to Section 3.05(b), but only to the extent that such amounts
are not already on deposit in such Collection Account. In addition, each Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred by it to such account on such Master Servicer Remittance Date from
such Master Servicer's Collection Account pursuant to the first paragraph of
Section 3.04(b). Upon confirmation that such final deposits have been made and
following the surrender of all the Certificates on the Final Distribution Date,
the Trustee shall release or cause to be released to the Sole
Certificateholder(s) (or any designee thereof), the Mortgage Files for the
remaining Pooled Mortgage Loans and shall execute all assignments, endorsements
and other instruments furnished to it by the Sole Certificateholder(s) as shall
be
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necessary to effectuate transfer of the remaining Pooled Mortgage Loans and REO
Properties to the Sole Certificateholder(s) (or any designee thereof). For
Federal income tax purposes, such surrender and release shall be treated as a
purchase of such Mortgage Loans and REO Properties for an amount of cash equal
to all amounts due in respect thereof after the distribution of amounts
remaining in the Distribution Account, and a crediting of such amounts as a
final distribution on all REMIC I Regular Interests, REMIC II Regular Interests
and REMIC III Certificates.
(c) Notice of any termination shall be given promptly by the
Certificate Administrator by letter to Certificateholders mailed (x) if such
notice is given in connection with the purchase of all the Pooled Mortgage Loans
and each REO Property remaining in the Trust Fund by one or both of the Master
Servicers, the Special Servicers and/or any Controlling Class
Certificateholder(s), not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Certificate Administrator therein designated. The
Certificate Administrator shall give such notice to the other parties hereto at
the time such notice is given to Certificateholders.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01. Any funds not distributed to
any Holder or Holders of Certificates of any Class on the Final Distribution
Date because of the failure of such Holder or Holders to tender their
Certificates shall, on such date, be set aside and held uninvested in trust and
credited to the account or accounts of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Certificate Administrator shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Certificate Administrator, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Certificate
Administrator shall distribute to the Class R Certificateholders all unclaimed
funds and other assets which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If any Controlling Class Certificateholder(s), one or both of the
Master Servicers, and/or the General Special Servicer purchase(s), or the Sole
Certificateholder(s) exchange(s) all of the Certificates for, all the Pooled
Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund as provided in Section 9.01, the
Trust and each REMIC Pool shall be terminated in accordance with the following
additional requirements, unless the purchasing party obtains at its own expense
and delivers to the Trustee and the Certificate Administrator an Opinion of
Counsel, addressed to the Trustee and the Certificate Administrator, to the
effect that the failure of the Trust to comply with the requirements of this
Section 9.02 will not result in an Adverse REMIC Event with respect to any REMIC
Pool:
(i) the Certificate Administrator shall specify the first day in
the 90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool, pursuant to Treasury Regulations Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any
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regulations thereunder (as evidenced by an Opinion of Counsel to such
effect delivered on behalf and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to the
time of making the final payment on the Certificates, the Certificate
Administrator shall sell or otherwise transfer all the Pooled Mortgage
Loans and each REO Property remaining in the Trust Fund to the relevant
Master Servicer(s), the General Special Servicer, the applicable
Controlling Class Certificateholder(s) or the Sole Certificateholder(s), as
the case may be, in exchange for cash and/or Certificates in accordance
with Section 9.01; and
(iii) at the time of the final payment on the Certificates, the
Certificate Administrator shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Certificates in accordance
with Section 4.01 all remaining cash on hand (other than cash retained to
meet claims), and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders of the
Certificates hereby authorize the Trustee to prepare and adopt, on behalf of the
Trust, a plan of complete liquidation of each REMIC Pool in the form of the
notice of termination provided for in Section 9.01(c) and in accordance with the
terms and conditions of this Agreement, which authorization shall be binding
upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Trustee shall elect to treat each REMIC Pool as a REMIC under
the Code and, if necessary, under Applicable State Law. Each such election will
be made on IRS Form 1066 or other appropriate federal tax or information return
or any appropriate state Tax Returns for the taxable year ending on the last day
of the calendar year in which the Certificates are issued.
(b) The Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates is hereby designated as the Tax Matters
Person of each REMIC Pool and, in such capacity, shall be responsible to act on
behalf of such REMIC Pool in relation to any tax matter or controversy, to
represent such REMIC Pool in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority, to request an
administrative adjustment as to any taxable year of such REMIC Pool, to enter
into settlement agreements with any governmental taxing agency with respect to
such REMIC Pool, to extend any statute of limitations relating to any tax item
of such REMIC Pool and otherwise to act on behalf of such REMIC Pool in relation
to any tax matter or controversy involving such REMIC Pool; provided that the
Tax Administrator is hereby irrevocably appointed and agrees to act (in
consultation with the Tax Matters Person for each REMIC Pool) as agent and
attorney-in-fact for the Tax Matters Person for each REMIC Pool in the
performance of its duties as such. The legal expenses and costs of any action
described in this Section 10.01(b) and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Tax Administrator's misfeasance, bad faith or negligence in the performance of,
or such Person's reckless disregard of, its obligations or are expressly
provided by this Agreement to be borne by any party hereto.
(c) The Tax Administrator shall prepare or cause to be prepared,
submit to the Trustee for execution and file all of the Tax Returns in respect
of each REMIC Pool (other than Tax Returns required to be filed by a Master
Servicer pursuant to Section 3.09(g)) and all of the applicable income tax and
other information returns for each Grantor Trust Pool. The expenses of preparing
and filing such returns shall be borne by the Tax Administrator without any
right of reimbursement therefor.
(d) The Tax Administrator 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, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide: (i) to any Transferor of
a Class R Certificate, such information as is necessary for the application of
any tax relating to the transfer of a Class R Certificate to any Person who is
not a Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
(e) The Trustee and the Tax Administrator shall take such action and
shall cause each REMIC Pool to take such action as shall be necessary to create
or maintain the status thereof as a REMIC under the REMIC Provisions (and the
other parties hereto shall assist them, to the extent reasonably requested by
the Trustee or the Tax Administrator), to the extent that the Trustee or the Tax
Administrator, as applicable, has actual knowledge that any particular action is
required; provided that the Trustee and the Tax Administrator shall be deemed to
have knowledge of relevant tax laws. The Trustee or the Tax Administrator, as
applicable, shall not knowingly take or fail to take any action, or cause any
REMIC Pool to take or fail to take any action, that under the REMIC Provisions,
if taken or not taken, as the case may be, could result in an Adverse REMIC
Event in respect of any REMIC Pool or an Adverse Grantor Trust Event with
respect
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to any Grantor Trust Pool, unless the Trustee or the Tax Administrator, as
applicable, has received an Opinion of Counsel to the effect that the
contemplated action or non-action, as the case may be, will not result in an
Adverse REMIC Event or an Adverse Grantor Trust Event. None of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the Trustee or the Tax Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event or an Adverse Grantor Trust Event could occur with
respect to such action. In addition, prior to taking any action with respect to
any REMIC Pool or the assets thereof, or causing any REMIC Pool to take any
action, which is not contemplated by the terms of this Agreement, each of the
other parties hereto will consult with the Tax Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event or an Adverse
Grantor Trust Event to occur, and no such other party shall take any such action
or cause any REMIC Pool to take any such action as to which the Tax
Administrator has advised it in writing that an Adverse REMIC Event or an
Adverse Grantor Trust Event could occur. The Tax Administrator may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not permitted by this Agreement (and in no
event by the Trust Fund or the Tax Administrator).
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool 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 3.17(a)),
then such tax, together with all incidental costs and expenses (including
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under Article IV, Article VIII or this Section 10.01; (ii) the
Certificate Administrator, if such tax arises out of or results from a breach by
the Certificate Administrator of any of its obligations under Article IV,
Article VIII or this Section 10.01 (which breach constitutes negligence, bad
faith or willful misconduct); (iii) the Tax Administrator, if such tax arises
out of or results from a breach by the Tax Administrator of any of its
obligations under Article IV, Article VIII or this Section 10.01 (which breach
constitutes negligence, bad faith or willful misconduct); (iv) the applicable
Master Servicer, if such tax arises out of or results from a breach by such
Master Servicer of any of its obligations under Article III or this Section
10.01; (v) the applicable Special Servicer, if such tax arises out of or results
from a breach by such Special Servicer of any of its obligations under Article
III or this Section 10.01; or (vi) the Trust, out of the Trust Fund (exclusive
of the Grantor Trust Pools), in all other instances. If any tax is imposed on
any Grantor Trust Pool, 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 applicable Special Servicer, if
such tax arises out of or results from a breach by such Special Servicer of any
of its obligations under Article III or this Section 10.01; (ii) the applicable
Master Servicer, if such tax arises out of or results from a breach by such
Master Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Trustee, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under Article IV, Article VIII or this
Section 10.01; (iv) the Certificate Administrator, if such tax arises out of or
results from a breach by the Certificate Administrator of any of its obligations
under Article IV, Article VIII or this Section 10.01 (which breach constitutes
negligence, bad faith or willful misconduct); (v) the Tax Administrator, if such
tax arises out of or results from a breach by the Tax Administrator of any of
its obligations under Article IV, Article VIII or this Section 10.01 (which
breach constitutes negligence, bad faith or willful misconduct); or (iv) the
Trust, out of the portion of the Trust Fund constituting such Grantor Trust
Pool, in all other instances. Consistent with the foregoing, any tax permitted
to be incurred by a Special Servicer pursuant to Section 3.17(a) shall be
charged to and paid by the Trust. Any such amounts payable by the Trust in
respect of taxes shall be paid by the Trustee out of amounts on deposit in the
Distribution Account.
(g) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool and Grantor Trust
Pool on a calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall
not (except as contemplated by Section 2.03) accept any contributions of assets
to any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not result in an Adverse REMIC Event in
respect of such REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool.
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(i) None of the Master Servicers, the Special Servicers or the Trustee
shall consent to or, to the extent it is within the control of such Person,
permit: (i) the sale or disposition of any Pooled Mortgage Loan (except in
connection with (A) a Breach or Document Defect regarding any Pooled Mortgage
Loan, (B) the foreclosure, default or reasonably foreseeable material default of
a Pooled Mortgage Loan, including the sale or other disposition of a Mortgaged
Property acquired by foreclosure, deed in lieu of foreclosure or otherwise, (C)
the bankruptcy of any REMIC Pool, or (D) the termination of the Trust pursuant
to Article IX of this Agreement); (ii) the sale or disposition of any
investments in any Investment Account for gain; or (iii) the acquisition of any
assets for the Trust (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Pooled Mortgage Loan, other than a Replacement Pooled Mortgage Loan substituted
for a Deleted Pooled Mortgage Loan and other than Permitted Investments acquired
in connection with the investment of funds in an Account or an interest in a
single member limited liability company, as provided in Section 3.16); in any
event unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition and in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not result in an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to any Grantor
Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Master Servicers, the Special Servicers or the Trustee shall enter into any
arrangement by which any REMIC Pool will receive a fee or other compensation for
services or, to the extent it is within the control of such Person, permit any
REMIC Pool to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code. At all times as may be required by the Code,
each of the respective parties hereto (to the extent it is within its control)
shall take necessary actions within the scope of its responsibilities as more
specifically set forth in this Agreement such that it does not cause
substantially all of the assets of each REMIC Pool to fail to consist of
"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.
(k) Within 30 days after the related Startup Day, the Tax
Administrator shall obtain an identification number by filing IRS Form SS-4 with
the IRS for each REMIC Pool and prepare and file with the IRS, with respect to
each REMIC Pool, IRS Form 8811 "Information Return for Real Estate Mortgage
Investment Conduits (REMICs) and Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund consisting
of Post-ARD Additional Interest on the ARD Mortgage Loans in the Mortgage Pool
and any successor REO Pooled Mortgage Loans with respect thereto and the Class V
Sub-Account shall constitute, and that the affairs of such portion of the Trust
Fund shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. In addition, the
parties intend that the portion of the Trust Fund consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest and the REMIC III Residual
Interest shall constitute, and the affairs of such portion of the Trust Fund
shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. The Tax
Administrator shall also perform on behalf of each Grantor Trust Pool all
reporting and other tax compliance duties that are the responsibility of such
Grantor Trust Pool under the Code or any compliance guidance issued by the IRS
or any state or local taxing authorities. The expenses of preparing and filing
such returns shall be borne by the Tax Administrator.
SECTION 10.02. The Depositor, the Master Servicers and the Special
Servicers to Cooperate with the Tax Administrator.
(a) The Depositor shall provide or cause to be provided to the Tax
Administrator, within ten days after the Closing Date, all information or data
that the Tax Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including the price,
yield, prepayment assumption and projected cash flow of the Certificates.
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(b) Each of the Master Servicers and the Special Servicers shall
furnish such reports, certifications and information in its possession, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the Tax
Administrator in order to enable it to perform its duties under this Article X.
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ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
SECTION 11.01. Intent of the Parties; Reasonableness.
Except with respect to Section 11.11, Section 11.12 and Section 11.13,
the parties hereto acknowledge and agree that the purpose of Article XI of this
Agreement is to facilitate compliance by the Depositor with the provisions of
Regulation AB and related rules and regulations of the Commission. Neither the
Depositor nor either Master Servicer shall exercise its rights to request
delivery of information or other performance under these provisions other than
in good faith, or (except with respect to Section 11.11, Section 11.12 or
Section 11.13) 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,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agree to comply with requests made by the Depositor
or the Master Servicers in good faith for delivery of information under these
provisions on the basis of evolving interpretations of the requirements of
Regulation AB. In connection with the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2006-PWR12 transaction, each of the Master Servicers,
the Special Servicers, the Primary Servicers, the Trustee and the Certificate
Administrator shall cooperate fully with the good faith requests of the
Depositor and the Master Servicers, as applicable, to deliver or make available
to the Depositor or the Master Servicers, 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 Master Servicers, as applicable, to
permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosure relating to such Master Servicer, such Special Servicer,
such Primary Servicer, the Trustee and the Certificate Administrator, as
applicable, and any Sub-Servicer, or the Servicing of the Mortgage Loans,
reasonably believed by the Depositor or the Master Servicers, as applicable, to
be necessary in order to effect such compliance. For the avoidance of doubt,
none of the Master Servicers, the Primary Servicers or the Special Servicers is
responsible to make filings with the Commission.
SECTION 11.02. [Reserved.]
SECTION 11.03. Information to be Provided by the Master Servicers, the
Special Servicers, the Primary Servicers and the Certificate
Administrator.
(a) For so long as the Trust, and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan that is deposited into another commercial
mortgage loan securitization transaction (an "Other Securitization"), such Other
Securitization, is subject to the reporting requirements of the Exchange Act, as
promptly as practicable following written notice to or discovery of such
information by a Master Servicer, a Special Servicer, a Primary Servicer, the
Trustee or the Certificate Administrator, in each case as to itself, such person
shall provide (and, each Master Servicer, each Special Servicer, each Primary
Servicer and the Certificate Administrator as applicable, shall (a) use
reasonable efforts to cause each Sub-Servicer (other than any party or signatory
to this Agreement or Nationwide as the primary servicer under the Nationwide
Primary Servicing 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 or signatory to this
Agreement or Nationwide as the primary servicer under the Nationwide Primary
Servicing 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 (in writing and in form and substance reasonably satisfactory to the
Depositor) the information specified in paragraph (b) of this Section 11.03.
(b) For so long as the Trust, and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan that is deposited into an Other
Securitization, such Other Securitization, is subject to the reporting
requirements of the Exchange Act, the applicable Master Servicer, the applicable
Special Servicer, the applicable Primary Servicer, the
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Trustee and the Certificate Administrator shall (and each of the applicable
Master Servicer, the applicable Special Servicer, the applicable Primary
Servicer, the Trustee and the Certificate Administrator, as applicable, shall
(a) use reasonable efforts to cause each Sub-Servicer (other than any party or
signatory to this Agreement or Nationwide as the primary servicer under the
Nationwide Primary Servicing 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 or
signatory to this Agreement or Nationwide as the primary servicer under the
Nationwide Primary Servicing 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 such Other
Securitization, in writing of (A) any litigation or governmental proceedings
pending against the applicable Master Servicer, the applicable Special Servicer,
the applicable Primary Servicer, the Trustee, the Certificate Administrator 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 or the
certificateholders of such Other Securitization and (B) (I) any affiliations of
the type described in Item 1119(a) of Regulation AB that develop following the
Closing Date between the applicable Master Servicer, the applicable Special
Servicer, the applicable Primary Servicer, the Trustee or the Certificate
Administrator (or, if applicable, any Sub-Servicer) (and any other parties
identified in writing by the requesting party) and between such parties and the
Depositor or any Pooled Mortgage Loan Seller, and (II) any relationships that
develop after the Closing Date between the applicable Master Servicer, the
applicable Special Servicer, the applicable Primary Servicer, the Trustee or the
Certificate Administrator (or, if applicable, any Sub-Servicer) (and any other
parties identified in writing by the requesting party), on the one hand and the
Depositor or any Pooled Mortgage Loan Seller on the other hand of the type
described in Item 1119(b) or (c) of Regulation AB, and (ii) provide to the
Depositor, or the depositor in such Other Securitization, 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.
(c) In connection with the succession to a Master Servicer, a Special
Servicer, a Primary Servicer, any Additional Servicer, any Sub-Servicer or the
Trustee as servicer or trustee under this Agreement by any Person (i) into which
a Master Servicer, a Special Servicer, a 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 a Master
Servicer, a Special Servicer, a Primary Servicer, any Additional Servicer, any
Sub-Servicer or the Trustee, as the case may be, the applicable Master Servicer,
the applicable Special Servicer, the applicable Primary Servicer, any Additional
Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each
of the applicable Master Servicer, the applicable Special Servicer, the
applicable 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 or signatory to this Agreement or Nationwide as the
primary servicer under the Nationwide Primary Servicing 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 or signatory to this Agreement or Nationwide
as the primary servicer under the Nationwide Primary Servicing 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 10
Business 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 within a reasonable
period of time after such effective date (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 servicing with respect to the Pooled Mortgage
Loans or any class of Certificates.
(d) With respect to any Serviced Non-Pooled Pari Passu Companion Loan
that is deposited into an Other Securitization, the applicable Master Servicer,
the applicable Primary Servicer, the applicable Special Servicer, the Trustee
and the Certificate Administrator will take all actions reasonably requested of
it to enable such Other Securitization to comply with Regulation AB. Without
limiting the foregoing, the applicable Master Servicer, the applicable Primary
Servicer, the applicable Special Servicer, the Trustee and the Certificate
Administrator will, if reasonably requested by the depositor for such Other
Securitization, provide disclosure (which, except as otherwise agreed to by the
applicable Master Servicer, the applicable Primary Servicer, the applicable
Special Servicer, the Trustee or the
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Certificate Administrator, as applicable, with the applicable party(ies) to such
Other Securitization (and notwithstanding anything to the contrary stated or
implied in this Section 11.03) shall be without representation or warranty)
regarding the applicable Master Servicer, the applicable Primary Servicer, the
applicable Special Servicer, the Trustee and the Certificate Administrator,
respectively, as required by Regulation AB for inclusion in disclosure documents
with respect to such Other Securitization.
SECTION 11.04. [Reserved.]
SECTION 11.05. Filing Obligations.
Each Master Servicer, each Special Servicer, each Primary Servicer,
the Certificate Administrator, the Trustee and each Sub-Servicer, shall (a) use
reasonable efforts to cause each Sub-Servicer (other than any party or signatory
to this Agreement or Nationwide as the primary servicer under the Nationwide
Primary Servicing 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 or signatory to this
Agreement or Nationwide as the primary servicer under the Nationwide Primary
Servicing 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 11.06. Form 10-D Filings.
Within 15 days after each Distribution Date (the "Form 10-D Filing
Deadline") (subject to permitted extensions under the Exchange Act), the
Certificate Administrator 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 Certificate Administrator shall file each Form 10-D with a
copy of the related Distribution Date Statement attached thereto. Any necessary
disclosure in addition to the Distribution Date Statement that is required to be
included on Form 10-D ("Additional Form 10-D Disclosure") shall, pursuant to the
paragraph immediately below, be reported by the parties set forth on Schedule IX
and directed to the Depositor and the Certificate Administrator for approval by
the Depositor. The Certificate Administrator 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 IX) absent such reporting, direction and
approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule IX hereto, within 5 calendar days
after the related Distribution Date, each Person identified on Schedule IX shall
be required to provide to the Depositor and the Certificate Administrator (or,
with respect to any Serviced Non-Pooled Pari Passu Companion 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 IX, if applicable, and in form readily convertible to an
XXXXX-compatible form, or in such other form as otherwise agreed by the
Depositor, the Certificate Administrator and such party. 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 Certificate Administrator 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 and
expenses incurred by the Certificate Administrator in connection with including
any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. Any
notice delivered to the Certificate Administrator pursuant to this paragraph
shall be in the form attached hereto as Exhibit Q and 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 Certificate Administrator to
the other parties in writing.
On or prior to the 12th calendar day after the related Distribution
Date the Certificate Administrator shall prepare and deliver electronically the
Form 10-D to the Depositor for review. No later than the end of business on the
13th calendar day after the related Distribution Date, the Depositor shall
notify the Certificate Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-D, and shall sign
the Form 10-D
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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 Certificate
Administrator. The Certificate Administrator shall file such Form 10-D, upon
signature thereof as provided in Section 11.16, not later than 5:00 pm (New York
City time) on the 15th calendar day after the related Distribution Date. If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Certificate Administrator will follow the procedures set forth in
Section 11.10(b). After filing with the Commission, the Certificate
Administrator shall promptly, and no later than one Business Day after such
filing, pursuant to Section 4.02, make available on its internet website a final
executed copy of each Form 10-D prepared and filed by the Certificate
Administrator. 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 Certificate Administrator of its duties
under this Section 11.06 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 11.06. The
Certificate Administrator 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
Certificate Administrator'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. However, (a) if a Form 10-D is permitted to be
filed notwithstanding any missing information for inclusion therein, the
Certificate Administrator shall promptly inform the Depositor and nonetheless
file such Form 10-D at the direction of the Depositor and, if authorized under
Regulation AB, provide an explanation approved by the Depositor (based solely on
such notice regarding such Form 10-D as may have been delivered to it) of the
circumstances and (b) where information from such other party for inclusion in a
Form 10-D is not received on a timely basis but is subsequently provided within
a time period that may allow for the timely filing of the applicable Form 10-D
or an amendment thereto, then the Certificate Administrator shall use reasonable
efforts to properly prepare, arrange for execution and file such Form 10-D or
amendment thereto.
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SECTION 11.07. Form 10-K Filings.
Within 90 days after the end of each fiscal year of the Trust or such
earlier date as may be required by the Exchange Act (the "Form 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 Certificate
Administrator 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
Certificate Administrator within the applicable time frames set forth in this
Agreement, (i) an annual compliance statement for each Reporting Servicer, as
described under Section 11.11, (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer, as described
under Section 11.12, and (B) if any Reporting Servicer's report on assessment of
compliance with Servicing Criteria described under Section 11.12 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 11.12 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
described under Section 11.13, and (B) if any registered public accounting firm
attestation report described under Section 11.13 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 described in Section 11.08. 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 XI and directed to the Depositor and the Certificate Administrator for
approval by the Depositor. The Certificate Administrator 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 X) absent such reporting, direction and
approval. However, where information from such other party for inclusion in a
Form 10-K is not received on a timely basis but is subsequently provided within
a time period that may allow for the timely filing of the applicable Form 10-K
or an amendment thereto, then the Certificate Administrator shall use reasonable
efforts to properly prepare, arrange for execution and file such Form 10-K or
amendment thereto.
For so long as the Trust, and with respect to any Serviced Non-Pooled
Pari Passu Companion Loan, such Other Securitization, is subject to the
reporting requirements of the Exchange Act, as set forth on Schedule X hereto,
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 such schedule shall be required to provide to the
Depositor (or, with respect to any Serviced Non-Pooled Pari Passu Companion Loan
that is deposited into an Other Securitization, the depositor and the trustee in
such Other Securitization) and the Certificate Administrator, to the extent
known by such Person, the form and substance of the corresponding Additional
Form 10-K Disclosure as set forth on Schedule X, if applicable, and in form
readily convertible to an XXXXX-compatible form, or in such other form as
otherwise agreed by the Depositor, the Certificate Administrator and such
Person. Unless otherwise directed by the Depositor, and subject to any comments
received to such disclosure from the Depositor by March 15th, the Certificate
Administrator 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 and expenses incurred by the Certificate Administrator in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this paragraph. Any notice delivered to the Certificate
Administrator pursuant to this paragraph shall be in the form attached hereto as
Exhibit Q and 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 Certificate Administrator to the other parties in writing.
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On or prior to 3:00 p.m. (New York City time) March 23rd, the
Certificate Administrator shall prepare and deliver electronically a draft copy
of the Form 10-K to the Depositor for review. No later than 5:00 pm (New York
City time) on the 4th Business Day prior to the Form 10-K Filing Deadline, a
senior officer in charge of securitization of the Depositor notify the
Certificate Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-K and 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 Certificate
Administrator. If a Form 10-K cannot be filed on time or if a previously filed
Form 10-K needs to be amended, the Certificate Administrator will follow the
procedures set forth in Section 11.10(b). After filing with the Commission, the
Certificate Administrator shall, pursuant to Section 4.02, make available on its
internet website a final executed copy of each Form 10-K prepared and filed by
the Certificate Administrator. All communications to the Depositor under this
Article XI shall be delivered telephonically, to the telecopy number set forth
in Section 12.05 (or as otherwise specified by the Depositor) or by electronic
mail to "xxxXXxxxxxxxxxxxxx@xxxx.xxx" or such other electronic mail address as
the Depositor may specify upon not less than ten (10) Business Days advance
notice. 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 Certificate Administrator of its duties under this
Section 11.07 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 XI. The Certificate
Administrator shall have no liability with respect to any failure to properly
prepare, arrange for execution or file such Form 10-K resulting from the
Certificate Administrator'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. However, (a) if a Form 10-K is
permitted to be filed notwithstanding any missing information for inclusion
therein, the Certificate Administrator shall promptly inform the Depositor and
nonetheless file such Form 10-K at the direction of the Depositor and, if
authorized under Regulation AB, provide an explanation approved by the Depositor
(based solely on such notice regarding such Form 10-K as may have been delivered
to it) of the circumstances and (b) where information from such other party for
inclusion in a Form 10-K is not received on a timely basis but is subsequently
provided within a time period that may allow for the timely filing of the
applicable Form 10-K or an amendment thereto, then the Certificate Administrator
shall use reasonable efforts to properly prepare, arrange for execution and file
such Form 10-K or amendment thereto.
SECTION 11.08. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit M-1 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 or signatory to
this Agreement or Nationwide as the primary servicer under the Nationwide
Primary Servicing 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 or
signatory to this Agreement or Nationwide as the primary servicer under the
Nationwide Primary Servicing 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 7th 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 M-2, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx
(with a copy to Xxxxxx Xxxxxxxxx, Esq.). 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
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this Section 11.08 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 11.11, (ii) annual report on
assessment of compliance with Servicing Criteria provided pursuant to Section
11.12 and (iii) registered public accounting firm attestation report provided
pursuant to Section 11.13 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 11.13.
If any Serviced Non-Pooled Pari Passu Companion Loan is deposited into
a commercial mortgage securitization and the applicable Reporting Servicer is
provided with timely notice thereof and 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 Non-Pooled Pari
Passu Companion 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-Trust-Serviced
Pooled Mortgage Loan serviced under a Non-Trust-Serviced Pooled Mortgage Loan
Pooling and Servicing Agreement, the Master Servicer will use reasonable efforts
to obtain, and upon receipt deliver to the Depositor, a Xxxxxxxx-Xxxxx back-up
certification from the Non-Trust Master Servicer, the Non-Trust Special
Servicer, the trustee under the applicable Non-Trust Servicing Agreement and the
paying agent or certificate administrator under such Non-Trust Servicing
Agreement in form and substance similar to a Performance Certification or such
other form as is provided in the applicable Non-Trust Servicing Agreement.
SECTION 11.09. Form 8-K Filings.
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "Form 8-K Filing Deadline") under Form 8-K (each a
"Form 8-K Reportable Event"), the Certificate Administrator 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
Form 8-K 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 XI to which
such Form 8-K Reportable Event relates and such Form 8-K Disclosure Information
shall be directed to the Depositor and the Certificate Administrator for
approval by the Depositor. The Certificate Administrator 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 XI) absent such reporting,
direction and approval.
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As set forth on Schedule XI hereto, for so long as the Trust is
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 Form 8-K Reportable
Event the applicable Person identified on such Schedule XI shall be required to
provide written notice to the Depositor (and with respect to any Serviced
Non-Pooled Pari Passu Companion Loan that is deposited into an Other
Securitization, the depositor and the trustee in such Other Securitization) and
the Certificate Administrator 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 XI, if applicable, and in form readily convertible to an
XXXXX-compatible form, or in such other form as otherwise agreed by the
Depositor, the Certificate Administrator and such other person. Unless otherwise
directed by the Depositor, and subject to any comments received to such
disclosure from the Depositor by noon on the 3rd Business Day after such Form
8-K Reportable Event, the Certificate Administrator 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 and expenses incurred by
the Certificate Administrator in connection with including any Form 8-K
Disclosure Information on Form 8-K pursuant to this paragraph. Any notice
delivered to the Certificate Administrator pursuant to this paragraph shall be
in the form attached hereto as Exhibit Q and delivered by facsimile to (410)
715-2380 and by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other
address as may hereafter be furnished by the Certificate Administrator to the
other parties in writing.
No later than noon (New York City time) on the 3rd Business Day after
the Form 8-K Reportable Event, the Certificate Administrator shall prepare and
deliver electronically to the Depositor a Form 8-K. No later than noon (New York
City time) on the 4th Business Day after the Form 8-K Reportable Event, the
Depositor (or, with respect to any Serviced Non-Pooled Pari Passu Companion 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
Certificate Administrator shall file such Form 8-K, not later than 5:00 pm (New
York City time) on the 4th Business Day after the related Form 8-K Reportable
Event. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Certificate Administrator will follow the procedures
set forth in Section 11.10(b). After filing with the Commission, the Certificate
Administrator will, pursuant to Section 4.02, make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the
Certificate Administrator. 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 Certificate Administrator of its duties
under this Section 11.09 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 11.09. The
Certificate Administrator 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 Certificate
Administrator'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 Certificate Administrator shall
use reasonable efforts to properly 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.
Notwithstanding the second preceding paragraph, each Master Servicer,
each Special Servicer, each Primary Servicer, the Certificate Administrator, the
Trustee, each Sub-Servicer and each Servicing Function Participant, shall
promptly notify (and each Master Servicer, each Special Servicer, each Primary
Servicer, the Certificate Administrator, 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 or
signatory to this Agreement or Nationwide as the primary servicer under the
Nationwide Primary Servicing 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 or signatory to this Agreement or Nationwide
as the primary servicer under the Nationwide Primary Servicing 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
Certificate Administrator, but in no event later than noon on the 2nd Business
Day after its occurrence, of any Form 8-K Reportable Event relating to itself of
which it has knowledge.
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SECTION 11.10. 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 Certificate
Administrator is able to do so under applicable law, the Certificate
Administrator 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 11.03, 11.05, 11.07, 11.08 and 11.09 (and the
obligations of the applicable Primary Servicer under clauses (i), (ii) and (iii)
of Section 5.13(c) of the applicable Primary Servicing Agreement) shall be
suspended for so long as the Trust is not subject to the reporting requirements
of the Exchange Act. If such Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange Act
cannot be filed on or before January 30 of the first year in which the
Certificate Administrator would have otherwise been able to do so, notice that
such Form 15 Suspension Notification has not been filed shall be available to
the Reporting Servicers and to the Pooled Mortgage Loan Sellers on the
Certificate Administrator's internet website located at xxx.xxxxxxx.xxx on
January 30 of that year.
(b) The Certificate Administrator 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. If the Certificate
Administrator 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 Certificate Administrator 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 Certificate
Administrator 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. In the case
of Form 8-K, the Certificate Administrator 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 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 Certificate Administrator
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 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 Certificate Administrator of its duties
under this Section 11.10 related to the timely preparation and filing of Form
15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is
contingent upon such parties (and, to the extent applicable, any Additional
Servicer or Servicing Function Participant) performing their duties under this
Section. The Certificate Administrator 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
Certificate Administrator'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 11.11. Annual Compliance Statements.
Each Master Servicer, each Special Servicer, each Primary Servicer and
the Certificate Administrator and each Sub-Servicer (each a "Certifying
Servicer") shall (and each Master Servicer, each Special Servicer, each Primary
Servicer and the Certificate Administrator 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
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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 to the Depositor, the Certificate
Administrator and the Trustee on or before March 7, with respect to any
Additional Servicer and each Sub-Servicer (excluding the Primary Servicers), or
March 15 or if such day is not a Business Day, the immediately preceding
Business Day (with no cure period), with respect to the Master Servicers, the
Special Servicers, the Primary Servicers or the Certificate Administrator, 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 (or such
Additional Servicer's or Sub-Servicer's) activities during the preceding
calendar year or portion thereof and of such Certifying Servicer's (or such
Additional Servicer's or Sub-Servicer's) performance under this Agreement, or
the applicable sub-servicing agreement or primary servicing agreement in the
case of an Additional Servicer or a Sub-Servicer, has been made under the
supervision of such officer or such Certifying Servicer or such Additional
Servicer or Sub-Servicer, as the case may be, 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 such Additional Servicer
has fulfilled all its obligations under the applicable sub-servicing agreement
or primary servicing agreement, 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 each Master
Servicer, each Special Servicer, each Primary Servicer and the Certificate
Administrator 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
Controlling Class Representative. 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 or
Additional Servicer, as applicable, as to the nature of any failures by such
Certifying Servicer or Additional Servicer, in the fulfillment of any of the
Certifying Servicer's or Additional 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 May 1, in the case of a Certifying Servicer, or April 1, in
the case of any Additional Servicer (excluding the Primary Servicers) or any
Sub-Servicers (excluding the Primary Servicers), unless notice has been made
available to such parties on the Certificate Administrator's internet website
located at xxx.xxxxxxx.xxx that a Form 15 Suspension Notification with respect
to the Trust has not been filed pursuant to Section 11.10.
If any Serviced Non-Pooled Pari Passu Companion Loan is deposited into
an Other Securitization, the applicable Certifying Servicer shall provide, if
requested by a party to the Other Pooling and Servicing Agreement, an Officer's
Certificate as described in this Section. With respect to any Non-Trust-Serviced
Pooled Mortgage Loan serviced under a Non-Trust Servicing Agreement, the
applicable Master Servicer will use reasonable efforts to obtain, and upon
receipt deliver to the Depositor, from the Non-Trust Master Servicer, the
Non-Trust Special Servicer, the trustee under the applicable Non-Trust Servicing
Agreement and the paying agent or certificate administrator under such Non-Trust
Servicing Agreement an Officer's Certificate in form and substance similar to
the Officer's Certificate described in this Section or such other form as is set
forth in the applicable Non-Trust Servicing Agreement.
SECTION 11.12. Annual Reports on Assessment of Compliance with
Servicing Criteria.
By March 15 or if such day is not a Business Day, the immediately
preceding Business Day (with no cure period), with respect to the Master
Servicers, the Special Servicers, the Primary Servicers, the Certificate
Administrator and the Trustee, of each year, commencing in March 2007, each
Master Servicer, each Special Servicer (regardless of whether such Special
Servicer has commenced special servicing of any Mortgage Loan), the Certificate
Administrator, each Primary Servicer 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, by March 7th, each Servicing Function Participant
(other than a party to this Agreement or to a Primary Servicing 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 or to a
Primary Servicing 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
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Trustee, the Certificate Administrator and the Depositor, with a copy to the
Rating Agencies and the Controlling Class Representative, 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 11.07, 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 as provided in Section 11.13.
No later than the end of each fiscal year for the Trust for which a
10-K is required to be filed, each Master Servicer, each Special Servicer, each
Primary Servicer and the Trustee shall each forward to the Certificate
Administrator 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 Servicers, the Special Servicers, the Primary
Servicers, the Trustee and the Sub-Servicers submit their respective assessments
by March 7th or March 15th, as applicable, to the Certificate Administrator,
each such party shall also at such time include, in its submission to the
Certificate Administrator, the assessment (and attestation pursuant to Section
11.13) of each Servicing Function Participant engaged by it, to the extent
received.
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 each Master Servicer, each Special Servicer,
each Primary Servicer, the Certificate Administrator, the Trustee and any
Servicing Function Participant as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by such Master Servicer, such
Special Servicer, the Certificate Administrator, the Trustee or any Servicing
Function Participant, respectively, and (ii) the Certificate Administrator shall
confirm that the assessments taken individually address the Relevant Servicing
Criteria for each party as set forth on Schedule VIII and notify the Depositor
of any exceptions. None of the Master Servicers, the Special Servicers, the
Primary Servicers, the Trustee or any Servicing Function Participant shall be
required to deliver, or to endeavor to cause the delivery of, any such reports
until May 1 in the case of the Master Servicers, the Special Servicers, the
Primary Servicers 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 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 11.12 by a Master Servicer, a Special Servicer, a Primary Servicer, the
Certificate Administrator 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 Non-Pooled Pari Passu Companion Loan is deposited into
an Other Securitization, each of the applicable Master Servicer, the applicable
Special Servicer (regardless of whether such Special Servicer has commenced
special servicing of any Mortgage Loan), the Certificate Administrator 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 or to a Primary
Servicing 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 or to
a Primary Servicing 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
described in this Section and an attestation as described in Section 11.13.
With respect to any Non-Trust-Serviced Pooled Mortgage Loan serviced
under a Non-Trust Servicing Agreement, the applicable Master Servicer will use
reasonable efforts to obtain, and upon receipt deliver to the Depositor and the
Certificate Administrator, an annual report on assessment of compliance as
described in this Section and an
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attestation as described in Section 11.13 from the Non-Trust Master Servicer,
the Non-Trust Special Servicer, the trustee under the applicable Non-Trust
Servicing Agreement and the paying agent or certificate administrator under such
Non-Trust Servicing Agreement and in form and substance similar to the annual
report on assessment of compliance described in this Section and the attestation
described in Section 11.13.
SECTION 11.13. Annual Independent Public Accountants' Servicing
Report.
By March 22 or if such day is not a Business Day, the immediately
preceding Business Day (with no cure period), in respect of the Master
Servicers, the Special Servicers, the Primary Servicers, the Certificate
Administrator and the Trustee, of each year, commencing in March 2007, the
Master Servicers, the Special Servicers, the Primary Servicers, the Certificate
Administrator 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 15th, each Servicing Function Participant (other than a party to this
Agreement or to a Primary Servicing 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 15th, each Servicing Function Participant
(other than a party to this Agreement or to a Primary Servicing 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 such Master
Servicer, such Special Servicer, the Certificate Administrator, 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 a report to the Trustee, the Certificate Administrator and the
Depositor, with a copy to the Rating Agencies and the Controlling Class
Representative, 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 a Master Servicer, a
Special Servicer, a Primary Servicer, the Certificate Administrator or the
Trustee (or any Sub-Servicer or Servicing Function Participant with which the
applicable Master Servicer, the applicable Special Servicer, the applicable
Primary Servicer, the Certificate Administrator or the Trustee has entered into
a servicing relationship with respect to the Mortgage Loans (other than a party
to this Agreement or to a Primary Servicing Agreement)), (i) the Depositor shall
have the right to review the report and, if applicable, consult with the
applicable Master Servicer, the applicable Special Servicer, the applicable
Primary Servicer, the Certificate Administrator, the Trustee, any Sub-Servicer
or any such Servicing Function Participant as to the nature of any material
instance of noncompliance by such Master Servicer, such Special Servicer, such
Primary Servicer, the Certificate Administrator, the Trustee or any such
Servicing Function Participant with the Servicing Criteria applicable to such
Person, and (ii) the Certificate Administrator shall confirm that each
assessment submitted pursuant to Section 11.12 is coupled with an attestation
meeting the requirements of this Section and notify the Depositor of any
exceptions. None of the Master Servicers, the Special Servicers, the Certificate
Administrator, the Primary Servicers, the Trustee or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, such reports until May 1 in the case of the Master Servicers, the Special
Servicers, the Certificate Administrator, the Primary Servicers or the Trustee,
or April 1 in the case of any Servicing Function Participant, in any given year
so long as it has received written confirmation from the Depositor that a Form
10-K is not required to be filed in respect of the Trust for the preceding
fiscal year.
SECTION 11.14. Indemnification.
Each of the Master Servicers, the Special Servicers, the Primary
Servicers, the Trustee and the Certificate Administrator (each an "Indemnifying
Party") shall indemnify and hold harmless each other and each Certification
Party and its affiliates (and, with respect only to clauses (a)(ii) and (a)(iii)
below, if applicable to such Indemnifying Party, any
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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) failure to perform its obligations
under this Article XI, or (ii) negligence, bad faith or willful misconduct on
the part of the Indemnifying Party in the performance of such obligations. Each
Master Servicer, each Special Servicer, each Primary Servicer, the Certificate
Administrator and the Trustee shall (a) use reasonable efforts to cause each
Additional Servicer or other Servicing Function Participant (other than a party
to this Agreement or to a Primary Servicing 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 or other Servicing
Function Participant (other than a party to this Agreement or to a Primary
Servicing 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 Indemnitee (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 Indemnitee 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 hereunder or thereunder.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Indemnitee, then the applicable
Master Servicer, the applicable Special Servicer, the applicable Primary
Servicer and the Certificate Administrator, each Additional Servicer or other
Servicing Function Participant referred to in the paragraph above (the
"Performing Party") shall (and the applicable Master Servicer, the applicable
Special Servicer, the applicable Primary Servicer, the Certificate Administrator
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 or to a Primary Servicing
Agreement) and (b) cause each Additional Servicer 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 or to a Primary Servicing Agreement), to) contribute to the amount
paid or payable to the Certification Indemnitee as a result of the losses,
claims, damages or liabilities of the Certification Indemnitee in such
proportion as is appropriate to reflect the relative fault of the Certification
Indemnitee 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 XI
(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
XI) or the Performing Party's negligence, bad faith or willful misconduct in
connection therewith. Each Master Servicer, each Special Servicer, each Primary
Servicer, the Certificate Administrator and the Trustee shall (a) use reasonable
efforts to cause each Additional Servicer or Servicing Function Participant with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans (other than a party to this Agreement or
to a Primary Servicing 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 or to a Primary Servicing Agreement), to agree to
the foregoing indemnification and contribution obligations. In no event shall
any indemnification payment to which any party is entitled to under this Section
11.14 be paid from the assets of the Trust Fund. It is acknowledged that the
party identified as Prudential Mortgage Capital Company LLC ("PMCC") on the
Schedule of Designated Sub-Servicers attached hereto as Schedule III is not a
Sub-Servicer, Additional Servicer or Servicing Function Participant and PAR
shall have no obligation to cause PMCC to perform any obligations set forth in
this Article XI, shall not be imputed with any knowledge of PMCC for performance
of its duties hereunder, and shall have no obligation to indemnify any
Certification Indemnities for any action or failure to act by PMCC, so long as
PAR does not cause PMCC to perform any activities that would that would cause
PMCC to qualify as a Servicing Function Participant hereunder.
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SECTION 11.15. Amendments.
This Article XI may be amended by the parties hereto pursuant to
Section 12.01 (without, in each case, any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations (other than Section 11.11, 11.12 and
11.13) 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 11.16. Exchange Act Report Signatures.
Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so directed by the Depositor, by the Certificate Administrator
pursuant to a power of attorney provided to the Certificate Administrator by the
Depositor in accordance with procedures to be agreed upon by the Depositor and
the Certificate Administrator and meeting the requirements of Regulation S-K.
The Depositor shall provide its signature or power of attorney to the
Certificate Administrator by electronic or fax transmission (with hard copy to
follow by overnight mail) no later than the 13th calendar day following the
related Distribution Date for Form 10-D, and not later than noon on the date of
filing for Form 8-K (provided, that in each case the Certificate Administrator
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 Certificate Administrator
will follow the procedures set forth in this Article XI. The signing party at
the Depositor can be contacted at Bear Xxxxxxx Commercial Mortgage Securities
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx
Xxxxxxx (with a copy to Xxxxxx Xxxxxxxxx, Esq., telecopy number: (917)
849-1179), and the signing party at the Certificate Administrator, if
applicable, can be contacted at Xxxxx Fargo Bank, National Association, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS) Bear Xxxxxxx Commercial Mortgage Securities Inc., Series 2006-PWR12.
The Certificate Administrator shall have no liability for any loss,
expense, damage or claim arising out of or with respect to its having signed any
Form 8-K or Form 10-D if the power of attorney provided to it by the Depositor
pursuant to the immediately preceding paragraph was not properly prepared, not
resulting from its own negligence, bad faith or willful misconduct.
SECTION 11.17. Termination of the Trustee, the Certificate
Administrator and Sub-Servicers.
(a) Each of the Master Servicers, the Special Servicers, the Primary
Servicers, the Certificate Administrator 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 such Master Servicer shall
terminate the applicable Primary Servicer in accordance with the terms of the
applicable Primary Servicing Agreement, if such Sub-Servicer or such Primary
Servicer, as the case may be, is in breach of any of its obligations under such
sub-servicing agreement or the applicable 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 Certificate Administrator
if the Certificate Administrator fails to comply with any of its obligations
under this Article XI; provided that such termination shall not be effective
until a successor trustee or Certificate Administrator, as the case may be,
shall have accepted the appointment; provided further that the Certificate
Administrator 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 Certificate
Administrator'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.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any of the Non-Pooled Noteholders, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein or to correct any error, (iii)
to make any other provisions with respect to matters or questions arising
hereunder which shall not be inconsistent with the then existing provisions
hereof, (iv) as evidenced by an Opinion of Counsel delivered to the Trustee, the
Master Servicers and the Special Servicers, to relax or eliminate (A) any
requirement hereunder imposed by the REMIC Provisions (if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated) or (B) any transfer restriction imposed on the Certificates pursuant
to Section 5.02(b) or Section 5.02(c) (if applicable law is amended or clarified
such that any such restriction may be relaxed or eliminated), (v) as evidenced
by an Opinion of Counsel delivered to the Trustee, either (X) to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to any REMIC Pool or any Grantor Trust Pool at least from the
effective date of such amendment, or (Y) to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of any REMIC Pool or any Grantor
Trust Pool, (vi) subject to Section 5.02(d)(iv), to modify, add to or eliminate
any of the provisions of Section 5.02(d)(i), (ii) or (iii), (vii) to avoid an
Adverse Rating Event with respect to any Class of Rated Certificates; or (viii)
for the purpose of causing continued sale treatment of the transfer of the
Pooled Mortgage Loans to the Trust by the Depositor and/or the continued sale
treatment of the transfer of any of the Pooled Mortgage Loans to the Depositor
by any Pooled Mortgage Loan Seller under applicable standards of the Financial
Accounting Standards Board (or any successor thereto) as in effect from time to
time; provided that (I) no such amendment may significantly change the
activities of the Trust; and (II) any such amendment for the specific purposes
described in clause (iii), (iv), (vii), (viii) above shall not adversely affect
in any material respect the interests of any Certificateholder or any
third-party beneficiary of this Agreement or of any provision hereof, as
evidenced by the Trustee's and Certificate Administrator's receipt of an Opinion
of Counsel to that effect (or, alternatively, in the case of a Class of Rated
Certificates, a written confirmation from each Rating Agency to the effect that
such amendment shall not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency, or, alternatively, in
the case of a Serviced Non-Pooled Pari Passu Mortgage Loan Noteholder as a third
party beneficiary of this Agreement, a written confirmation from each applicable
Rating Agency for any related Non-Pooled Pari Passu Companion Loan Securities
then outstanding to the effect that such amendment shall not result in an
Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency); (III) with
respect to any such amendment for the specific purposes described in clause
(iii) above, the Trustee and the Certificate Administrator shall receive a
written confirmation from each Rating Agency to the effect that such amendment
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and, if a Serviced Mortgage Loan Group
that includes one or more Serviced Non-Pooled Pari Passu Loans is then serviced
and administered hereunder, also shall receive a written confirmation from each
applicable Rating Agency for such Non-Pooled Pari Passu Companion Loan
Securities to the effect that such amendment shall not result in an Adverse
Rating Event with respect to any class of such Non-Pooled Pari Passu Companion
Loan Securities rated by such applicable Rating Agency; and (IV) no such
amendment may adversely affect any Serviced Non-Pooled Subordinate Noteholder
related to any Serviced Mortgage Loan Group then serviced and administered under
this Agreement without the written consent of such Serviced Non-Pooled
Subordinate Noteholder. This Agreement may also be amended from time to time by
the mutual agreement of the parties hereto, without the consent of any of the
Certificateholders, as and to the extent provided by Article XI.
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 66-2/3% of the Voting Rights allocated to
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all of the Classes that are materially affected by the amendment and without the
consent of any of the Non-Pooled Noteholders, 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 of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
the Pooled Mortgage Loans and/or REO Properties which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i) above, without the consent of the Holders of all Certificates of such
Class, (iii) modify the provisions of this Section 12.01 or the definition of
"Servicing Standard", without the consent of the Holders of all Certificates
then outstanding, (iv) significantly change the activities of the Trust, without
the consent of the Holders of Certificates entitled to not less than 51% of all
the Voting Rights (not taking into account Certificates held by the Depositor or
any Pooled Mortgage Loan Seller or any of their respective Affiliates or
agents), (v) adversely affect in any material respect the interests of any
third-party beneficiary of this Agreement or of any provision herein, without
the consent of such third-party beneficiary or (vi) adversely affect any
Serviced Non-Pooled Subordinate Noteholder related to any Serviced Mortgage Loan
Group then serviced and administered under this Agreement without the written
consent of such Serviced Non-Pooled Subordinate Noteholder. The Trustee shall
not agree to amend any Pooled Mortgage Loan Purchase Agreement in any manner
that would adversely affect in any material respect the interests of the Holders
of any Class of Certificates, except with the consent of the Holders of all
Certificates of such Class. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 12.01, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, none of
the Certificate Administrator, the Trustee, the Master Servicers or the Special
Servicers shall consent to any amendment to this Agreement unless it shall first
have obtained or been furnished with an Opinion of Counsel to the effect that
neither such amendment nor the exercise of any power granted to any party hereto
in accordance with such amendment will result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Certificate Administrator shall deliver a copy thereof to
each Certificateholder, each Rating Agency and each Serviced Non-Pooled Mortgage
Loan Noteholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 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, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee and the Certificate Administrator each may but shall
not be obligated to enter into any amendment pursuant to this Section 12.01 that
affects its rights, duties and immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 12.01(a) or (c) shall be payable out of
the Distribution Account.
(h) Notwithstanding any contrary provision of this Section, the
parties shall not enter into any amendment of this Agreement that would be
reasonably likely to have an adverse effect on a Primary Servicer's rights and
duties under the applicable Primary Servicing Agreement, unless such Primary
Servicer has consented to such amendment (such consent not to be unreasonably
withheld or delayed).
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SECTION 12.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, 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 to be
effected by the Trustee at the expense of the Trust (payable out of the
Distribution Account), but only if (i) a Master Servicer or Special Servicer, as
applicable, determines in its reasonable good faith judgment, that such
recordation materially and beneficially affects the interests of the
Certificateholders and so informs the Trustee in writing and (ii) the
Controlling Class Representative consents.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 12.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or Non-Pooled
Noteholder shall not operate to terminate this Agreement or the Trust, nor
entitle such Certificateholder's or Non-Pooled Noteholder's legal
representatives or heirs to claim an accounting or to 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) No Certificateholder or Non-Pooled Noteholder shall have any right
to vote (except as expressly provided for herein) or in any manner otherwise
control the operation and management of the Trust Fund, 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 and/or Non-Pooled Noteholders from time to time as partners
or members of an association; nor shall any Certificateholder or Non-Pooled
Noteholder be under any liability to any third party by reason of any action
taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder or Non-Pooled Noteholder shall have any right
by virtue 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
or any Mortgage Loan, unless, with respect to any suit, action or proceeding
upon or under or with respect to this Agreement, such Person previously shall
have given to the Trustee a written notice of default hereunder, and of the
continuance thereof, as hereinbefore provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates entitled to at
least 25% of the Voting Rights (in the case of a Certificateholder) or the
related Non-Pooled Noteholder, as the case may be, 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 costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 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. It is understood and intended,
and 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 whatsoever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of any other Holders of
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder (which priority or preference is not otherwise provided for
herein), or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 12.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights
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and remedies of the parties hereunder shall be determined in accordance with
such laws. The parties hereto intend that the provisions of Section 5-1401 of
the New York General Obligations Law shall apply to this Agreement.
SECTION 12.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx (with a copy
to Xxxxxx Xxxxxxxxx, Esq., telecopy number: (000) 000-0000); (ii) in the case of
PAR as a Master Servicer, Prudential Asset Resources Inc., 0000 Xxxx Xxxxxx,
Xxxxx 0000X, Xxxxxx, Xxxxx, 00000, Attention: C. Xxxx Xxxxx, telecopy number:
(000) 000-0000; (iii) in the case of WFB as a 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 94111); (iv) in the case of the General Special
Servicer, ARCap Servicing, Inc., 0000 X. X'Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy number (000) 000-0000 (with a
copy to Xxxxx Xxxxxx, ARCap Servicing, Inc., 0000 X. X'Xxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000, telecopy number (000) 000-0000); (v) in the case of
each Loan Specific Special Servicer, Prudential Asset Resources Inc., 0000 Xxxx
Xxxxxx, Xxxxx 0000X, Xxxxxx, Xxxxx, 00000, Attention: C. Xxxx Xxxxx, telecopy
number: (000) 000-0000; (vi) in the case of WFB as the Certificate Registrar,
Certificate Administrator and Tax Administrator, Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration (CMBS), Bear Xxxxxxx Commercial Mortgage
Securities Inc., 2006-PWR12, telecopy number: (000) 000-0000; (vii) in the case
of the Trustee, LaSalle Bank National Association, 000 Xxxxx XxXxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securitization and Trust
Services Group, Bear Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12,
telecopy number: (000) 000-0000; (viii) in the case of the Rating Agencies, (A)
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial MBS Monitoring Department, facsimile number: (212)
553-4392, and (B) Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance, telecopy number: (000) 000-0000;
(ix) in the case of Nationwide Life Insurance Company as Primary Servicer,
Nationwide Life Insurance Company, Xxx Xxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxx 00000-0000, Attention: Xxxxxx Xxxxxxx, facsimile number: (000) 000-0000;
(x) in the case of Principal Global Investors, LLC as Primary Servicer,
Principal Global Investors, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000,
Attention: Xxxxxx Xxxxxxx, Managing Director, Commercial Mortgage Servicing,
facsimile number: (000) 000-0000 (with a copy to Xxxxxx X. Xxxxxxxxx, Esq., at
the same address); and (xi) in the case of any Pooled Mortgage Loan Seller, the
address for notices to such Pooled Mortgage Loan Seller under the related Pooled
Mortgage Loan Purchase Agreement; or as to each such Person such other address
and/or telecopy number as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
In addition, any and all notices and communications to the Depositor
under Article XI shall be delivered both by the means and in the manner set
forth in the prior paragraph and by the means set forth in Section 11.07.
SECTION 12.06. 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
covenant(s), agreement(s), provision(s) or term(s) 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.
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SECTION 12.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective successors and assigns and,
as third party beneficiaries (with all right to enforce the obligations
hereunder intended for their benefit as if a party hereto), the Underwriters,
the Designated Sub-Servicers and the non-parties referred to in Sections 6.03,
8.05, and Section 3.22(f) and all such provisions shall inure to the benefit of
the Certificateholders. Each of the Designated Sub-Servicers shall be a
third-party beneficiary to the obligations of a successor Master Servicer under
Section 3.22; provided that the sole remedy for any claim by a Designated
Sub-Servicer as third party beneficiary pursuant to this Section 12.07 shall be
against a successor Master Servicer in its corporate or company capacity and no
such Designated Sub-Servicer shall have any rights or claims against the Trust
Fund or any party hereto (other than such successor Master Servicer) as a result
of any rights conferred on such Designated Sub-Servicer as a third-party
beneficiary under this Section 12.07. The Non-Pooled Noteholders (other than any
Non-Pooled Noteholder that is same Person as or an Affiliate of the related
Borrower) and any designees thereof acting on behalf of or exercising the rights
of such Non-Pooled Noteholders shall be third-party beneficiaries to this
Agreement with respect to their rights as specifically provided for herein.
SECTION 12.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 12.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee (or, with respect to items (v) and (vii) below, the
Certificate Administrator) shall promptly provide notice to each Rating Agency
and the Depositor (and, with respect to items (i), (ii) and (iii) below, each
Serviced Non-Pooled Mortgage Loan Noteholder; provided that notice with respect
to item (ii) below shall be given within one Business Day of the Trustee's
actual knowledge thereof) with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation, termination, merger or consolidation of
any Master Servicer or Special Servicer and the appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) any repurchase or substitution of a Mortgage Loan by a
Pooled Mortgage Loan Seller as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) Each Master Servicer shall promptly provide notice to each Rating
Agency and the Depositor with respect to each of the following of which it has
actual knowledge:
(i) the resignation or removal of the Trustee and the appointment
of a successor; and
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(ii) any change in the location of its Collection Account, any
Companion Note Custodial Account or any Subordinate Note Custodial Account
maintained by it, as applicable.
(c) Each of the Master Servicers and the Special Servicers shall
promptly furnish (in hard copy format or through use of a Master Servicer's
internet website), to each Rating Agency copies of the following items (in each
case, at or about the same time that it delivers or causes the delivery of such
item to the Trustee):
(i) each of its annual compliance statements and annual
compliance assessments delivered under Section 11.11 and Section 11.12;
(ii) each of the attestation reports of a public accounting firm
regarding such servicer delivered under Section 11.13;
(iii) each report prepared pursuant to Section 3.09(e);
(iv) to the extent so required by a Rating Agency to confirm any
rating assigned thereby to any Class of Rated Certificates or any class of
Non-Pooled Pari Passu Companion Loan Securities such other information in
the possession of the applicable Master Servicer and/or Special Servicer as
such Rating Agency may reasonably request.
(d) The Certificate Administrator shall promptly deliver or otherwise
make available to each Rating Agency (in hard copy format or through use of the
Certificate Administrator's internet website) a copy of each Certificateholder
Report forwarded to the Holders of the Certificates (in each case, at or about
the same time that it delivers such Certificateholder Report to such Holders).
Any Restricted Servicer Reports delivered electronically as aforesaid shall be
accessible on the Certificate Administrator's internet website on a restricted
basis.
(e) The parties intend that each Rating Agency provide to the Trustee,
upon request, a listing of the then-current rating (if any) assigned by such
Rating Agency to each Class of Certificates then outstanding.
SECTION 12.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicers and the Special Servicers shall each
deliver to the Controlling Class Representative a copy of each notice or other
item of information such Person is required to deliver to the Rating Agencies
pursuant to Section 12.09, in each case simultaneously with the delivery thereof
to the Rating Agencies, to the extent not already delivered to the Controlling
Class Representative pursuant to this Agreement.
SECTION 12.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 12.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PRUDENTIAL ASSET RESOURCES, INC.
a Master Servicer and Loan Specific
Special Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION
a Master Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ARCAP SERVICING, INC.
General Special Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PSA
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Solely in its capacity as Certificate
Administrator and Tax Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PSA
Although not a party to this Agreement, Principal Global Investors, LLC hereby
executes this Agreement to affirm its obligations under Sections 3.01, 3.03(b),
3.03(d), 3.08, 3.11, 3.20 and 3.22 and Article XI:
PRINCIPAL GLOBAL INVESTORS, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PSA
STATE OF ____________________________ )
) ss.:
COUNTY OF ___________________________ )
On the ______ day of June 2006, before me, a notary public in and for
said State, personally appeared __________________, personally known to me to be
a _________________ of _________________________________________, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such 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.
----------------------------------------
Notary Public
[Notarial Seal
Notary Page to PSA
EXHIBIT A-1
FORM OF CLASS X-0, X-0, X-0, X-XX, X-0, A-1A, A-M, A-J, B, C, D, E, F, G, H, J,
K, L, M, N, O, P AND X CERTIFICATES
CLASS [__] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-PWR12
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: [____% per annum][Variable]
Closing Date: June 21, 2006
First Distribution Date: July 11, 2006
Master Servicer and Loan-Specific Special Servicer: Prudential Asset Resources,
Inc.
Master Servicer: Xxxxx Fargo Bank, National Association
General Special Servicer: ARCap Servicing, Inc.
Certificate No. [__] -___
Class [Principal Balance] [Notional Amount] of the Class [__] Certificates as of
the Closing Date: $___________
Initial Certificate [Principal Balance] [Notional Amount] of this Certificate as
of the Closing Date: $_________
Aggregate Stated Principal Balance of the Pooled Mortgage Loans as of the
Closing Date ("Initial Pool Balance"): $2,079,030,155
Trustee: LaSalle Bank National Association
Certificate Administrator and Tax Administrator: Xxxxx Fargo Bank, National
Association
CUSIP No.: ________________
ISIN No.: ________________
A-1-1
[FOR BOOK-ENTRY CERTIFICATES][UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE ADMINISTRATOR OR ANY AGENT THEREOF 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 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.]
[FOR PRIVATE CERTIFICATES][THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED
STATES, ITS TERRITORIES AND POSSESSIONS. ANY RESALE, PLEDGE, 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 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN 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, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS
A-1-2
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES ONE OR
MORE "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[FOR SUBORDINATE CERTIFICATES][THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE
CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
[FOR PRINCIPAL BALANCE CERTIFICATES][THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.]
[FOR CLASS X-1 AND CLASS X-2 CERTIFICATES][THE OUTSTANDING CERTIFICATE NOTIONAL
AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS
CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE
THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.]
[FOR REGULATION S GLOBAL CERTIFICATES][PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF (A) THE CLOSING DATE AND (B) THE COMMENCEMENT OF THE INITIAL
OFFERING OF THE CERTIFICATES IN RELIANCE ON REGULATION S, THIS CERTIFICATE MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR
TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED. NO BENEFICIAL OWNERS OF
THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.][FOR
DEFINITIVE CERTIFICATES: [_________]] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the [principal
balance][notional amount] of this Certificate (its "Certificate [Principal
Balance][Notional Amount]") as of the Closing Date by the aggregate [principal
balance][notional amount] of all the Class [__] Certificates (their "Class
[Principal Balance][Notional Amount]") as of the Closing Date) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the Class [__]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2006 (the
"Agreement"), among Bear Xxxxxxx Commercial Mortgage
A-1-3
Securities Inc., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Prudential Asset Resources, Inc., as a
master servicer (in such capacity, a "Master Servicer," which term includes any
successor entity under the Agreement) and as special servicer of the 0000
Xxxxxxxx Loan Group and the Tuscany Plaza Loan Group (in such capacity, the
"Loan-Specific Special Servicer" which term includes any successor entity under
the Agreement), Xxxxx Fargo Bank, National Association, as a master servicer (in
such capacity, a "Master Servicer," which term includes any successor entity
under the Agreement), as certificate administrator (in such capacity, the
"Certificate Administrator," which term includes any successor entity under the
Agreement) and as tax administrator (in such capacity, the "Tax Administrator,"
which term includes any successor entity under the Agreement), ARCap Servicing,
Inc., as general special servicer (in such capacity, the "General Special
Servicer," which term includes any successor entity under the Agreement), and
LaSalle Bank National Association, as trustee (the "Trustee," which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein have the respective meanings assigned
thereto in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound. In the event that there is any conflict between any provision
of this Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the 11th day of such month (or, if such
11th day is not a Business Day, on the next succeeding Business Day), 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"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to all the Holders of the Class [__] Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Certificate Administrator by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Certificate
Administrator with wiring instructions no less than five Business Days prior to
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate [FOR PRINCIPAL BALANCE CERTIFICATES][(determined without regard
to any possible future reimbursement of any portion of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate)] will be
made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the
A-1-4
Collection Accounts, the Reserve Accounts, the Interest Reserve Account, the
Excess Liquidation Proceeds Account, the REO Account (if established), the
Companion Note Custodial Account(s), the Subordinate Note Custodial Accounts(s)
and any other accounts established pursuant to the Agreement may be made from
time to time for purposes other than, and, in certain cases, prior to,
distributions to Certificateholders, such purposes including the reimbursement
of advances made, or certain expenses incurred, with respect to the Mortgage
Loans and the payment of interest on such advances and expenses.
[FOR PRINCIPAL BALANCE CERTIFICATES][Any distribution to the Holder of
this Certificate in reduction of the Certificate Principal Balance hereof is
binding on such Holder and all future Holders of this Certificate and any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such distribution is made upon this
Certificate.]
This Certificate is issuable in fully registered form only without
interest coupons. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
[FOR PRIVATE CERTIFICATES][No transfer, sale, pledge or other
disposition of this Certificate or any interest herein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable
securities or blue sky laws of any state or other jurisdiction within the United
States, its territories and possessions, or is otherwise made in accordance with
the Securities Act and such other securities or blue sky laws. If a transfer of
this Certificate is to be made without registration under the Securities Act,
then (except in limited circumstances specified in the Agreement) 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 F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (ii) an Opinion
of Counsel satisfactory to the Certificate Administrator to the effect that such
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer and such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund, the Depositor, either Master Servicer, any Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator or the Certificate
Registrar in their respective capacities as such), 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.]
[FOR PRIVATE CERTIFICATES][If this Certificate constitutes a Rule 144A
Global Certificate and a transfer of any interest in this Certificate is to be
made without registration under the Securities Act, then (except under limited
circumstances specified in the Agreement) 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 F-2C to the Agreement, or (ii) an Opinion of Counsel to the
effect that such prospective Transferee is a Qualified Institutional Buyer and
such transfer may be made
A-1-5
without registration under the Securities Act. Except as discussed below or
under such other limited circumstances as are provided in the Agreement, if this
Certificate constitutes a Rule 144A Global Certificate, then interests herein
shall not be transferred to any Person who takes delivery in the form of an
interest in anything other than a Rule 144A Global Certificate.]
[FOR PRIVATE CERTIFICATES][Except under such limited circumstances as
are provided in the Agreement, if this Certificate constitutes a Regulation S
Global Certificate, then beneficial interests in this Certificate shall not be
transferred to any Person other than a non-United States Securities Person who
takes delivery in the form of a beneficial interest in this Certificate. If the
transfer occurs on or prior to the Release Date, then the Certificate Owner
desiring to effect such transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a written certification substantially
in the form attached as Exhibit F-2D to the Agreement. On or prior to the
Release Date, beneficial interests in any Regulation S Global Certificate may be
held only through Euroclear or Clearstream. After the Release Date, beneficial
interests in any Regulation S Global Certificate may be held through Euroclear,
Clearstream or any other direct account holder at DTC.]
[FOR PRIVATE CERTIFICATES][Notwithstanding the foregoing, any interest
in a Rule 144A Global Certificate may be transferred by any Certificate Owner
holding such interest to any Institutional Accredited Investor (other than a
Qualified Institutional Buyer) who takes delivery in the form of a Definitive
Certificate of the same Class as such Global Certificate upon delivery to the
Certificate Registrar and the Certificate Administrator of (i) such
certifications and/or opinions as are contemplated above with respect to
transfers of this Certificate in definitive form and (ii) such written orders
and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Certificate Administrator
to debit the account of a Depository Participant by a denomination of interests
in such Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Certificate Administrator, subject to
and in accordance with the applicable procedures of the Depository, shall reduce
the denomination of the subject Global Certificate, and cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.]
[FOR PRIVATE CERTIFICATES][None of the Depositor, the Initial
Purchasers, the Certificate Administrator, the Trustee, the Master Servicers,
the Special Servicers, the Tax Administrator or the Certificate Registrar is
obligated to register or qualify the Class [__] Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of this Certificate or any
interest herein without registration or qualification. Any Certificateholder or
Certificate Owner desiring to effect a transfer of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor, the
Initial Purchasers, the Certificate Administrator, the Trustee, each Master
Servicer, each Special Servicer, the Tax Administrator and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws or the provisions
described above.]
A-1-6
[FOR BOOK-ENTRY CERTIFICATES][The Global Certificates shall be
deposited with the Certificate Administrator as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.]
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement 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 insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a non-exempt violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. [FOR PRIVATE CERTIFICATES][Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate (and, if applicable, any Certificate Owner shall refuse to
transfer an interest in this Certificate), unless it has received from the
prospective Transferee (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan; or (ii) a certification to the effect that the purchase and holding
of this Certificate by such prospective Transferee are exempt from the
prohibited transaction provisions of Sections 406(a) and (b) and 407 of ERISA
and the excise taxes on such prohibited transactions imposed under Section 4975
(a) and (b) of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is investment
grade rated and is being acquired by, on behalf of or with assets of a Plan in
reliance upon Prohibited Transaction Exemption 90-30 or 90-24, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Certificate
Administrator, the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, any Special Servicer, either Primary Servicer, any Sub-Servicer, any
Exemption-Favored Party or any Borrower with respect to Pooled Mortgage Loans
constituting more than 5% of the aggregate unamortized principal of all the
Pooled Mortgage Loans determined as of the Closing Date, or by an Affiliate of
any such Person, and (Z) agrees that it will obtain from each of its Transferees
that is a Plan a written representation that such Transferee satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that is a Plan a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee (or, if
applicable, the Certificate Owner effecting the transfer) that such transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code.]
As provided in the 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 offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and
A-1-7
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any transfer or exchange of this
Certificate, but the Certificate Administrator or 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 this
Certificate.
[FOR BOOK-ENTRY 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, and accordingly, this Certificate shall constitute a Book-Entry
Certificate.]
The Depositor, the Master Servicers, the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicers, the Special
Servicers, the Trustee, the Certificate Administrator, the Tax Administrator or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicers, the Special Servicers, the Trustee, the Certificate
Administrator, the Tax Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Certificate Administrator on behalf of the Trustee and required to be
paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the General Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Pooled Mortgage Loans and each REO Property remaining in the Trust Fund; and
(iii) the exchange by the Sole Certificateholder(s) of all the Certificates for
all Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
General Special Servicer or any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders to purchase from the Trust Fund
all the Pooled Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Certificates; however,
such right to purchase is subject to the aggregate Stated Principal Balance of
the Mortgage Pool at the time of purchase being 1.0% or less of the Initial Pool
Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by
A-1-8
the amendment, any third-party beneficiary. 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 this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of any REMIC Pool as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [__] Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-1-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________________________.
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
to for the account of _________________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to ________________________________________________.
This information is provided by ____________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-1-11
[FOR BOOK ENTRY-CERTIFICATES INSERT THIS SCHEDULE A]
SCHEDULE A
SCHEDULE OF EXCHANGES IN GLOBAL SECURITY
The following exchanges of a part of this Global Security have been made:
Signature of
Amount of authorized
Amount of Increase in Principal Amount of officer of
Decrease in Principal Principal Amount this Global Security Trustee or
Amount of this of this Global following such securities
Date of Exchange Global Security Security decrease (or increase) custodian
---------------- --------------------- ---------------- ---------------------- ------------
X-0-00
XXXXXXX X-0
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2006-PWR12
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Closing Date: June 21, 2006
First Distribution Date: July 11, 2006
Master Servicer and Loan-Specific Special Servicer: Prudential Asset Resources,
Inc.
Master Servicer: Xxxxx Fargo Bank, National Association
General Special Servicer: ARCap Servicing, Inc.
Certificate No. R-___
Percentage Interest evidenced by this Class R Certificate: ___%
Aggregate Stated Principal Balance of the Pooled Mortgage Loans as of the
Closing Date ("Initial Pool Balance"): $2,079,030,155
Trustee: LaSalle Bank National Association
Certificate Administrator and Tax Administrator: Xxxxx Fargo Bank, National
Association
A-2-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. ANY RESALE, PLEDGE, 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 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN 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, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, 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 OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
A-2-2
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2006
(the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor (the "Depositor," which term includes any successor entity under the
Agreement), Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a "Master Servicer," which term includes any successor entity under
the Agreement) and as special servicer of the 0000 Xxxxxxxx Loan Group and the
Tuscany Plaza Loan Group (in such capacity, the "Loan-Specific Special Servicer"
which term includes any successor entity under the Agreement), Xxxxx Fargo Bank,
National Association, as a master servicer (in such capacity, a "Master
Servicer," which term includes any successor entity under the Agreement), as
certificate administrator (in such capacity, the "Certificate Administrator,"
which term includes any successor entity under the Agreement) and as tax
administrator (in such capacity, the "Tax Administrator," which term includes
any successor entity under the Agreement), ARCap Servicing, Inc., as general
special servicer (in such capacity, the "General Special Servicer," which term
includes any successor entity under the Agreement), and LaSalle Bank National
Association, as trustee (the "Trustee," which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned thereto in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound. In
the event that there is any conflict between any provision of this Certificate
and any provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the 11th day of such month (or, if such
11th day is not a Business Day, on the next succeeding Business Day), 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"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to all the Holders of the Class R Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Certificate Administrator by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Certificate
Administrator with wiring instructions no less than five Business Days prior to
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
A-2-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Account (if established), the Companion Note Custodial
Account(s), the Subordinate Note Custodial Accounts(s) and any other accounts
established pursuant to the Agreement may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without
interest coupons. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) 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
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that such prospective Transferee is a Qualified Institutional Buyer
and such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, either Master Servicer, any Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), 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.
None of the Depositor, the Initial Purchasers, the Certificate
Administrator, the Trustee, the Master Servicers, the Special Servicers, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class R Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Underwriters, the Certificate Administrator,
the Trustee, each Master Servicer, each Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws or the provisions described in the six preceding paragraphs.
A-2-4
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement 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 insurance company general accounts, that is subject to ERISA
or Section or Code (each, a "Plan"), or (B) to any Person who is directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either: (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee that such transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Certificate Administrator (i) to deliver payments to
a Person other than such Person and (ii) to negotiate the terms of any mandatory
disposition, to execute all instruments of Transfer and to do all other things
necessary in connection with any such disposition. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Certificate Administrator and the Tax
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or the Certificate Administrator has actual knowledge that
the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in this Certificate to such proposed Transferee shall be
effected. In connection therewith, the Certificate Registrar shall not register
the transfer of an Ownership Interest in this Certificate to any entity
classified as a partnership under the Code unless at the time of transfer, all
of its beneficial owners are United States Securities Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form
A-2-5
attached asExhibit H-2 to the Agreement stating that, among other things, it has
no actual knowledge that such other Person is not a Permitted Transferee. Each
Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Certificate
Administrator and the Tax Administrator written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
Regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder."
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Administrator to
confirm that, it has (i) sole investment discretion with respect to each such
account and (ii) full power to make the acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
described above in this Certificate.
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Administrator and the Tax Administrator the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not result in an Adverse
Rating Event; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Administrator and the Tax Administrator, to the effect that
such modification of, addition to or elimination of such provisions will not
cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization", a "Disqualified Non-United States Tax Person" or a "Disqualified
Partnership" (each as defined in the Agreement) and other than a foreign
permanent establishment or fixed base (each within the meaning of any applicable
income tax treaty) of a United States Tax Person or any other Person as to whom
the transfer of this Certificate may cause any REMIC Pool to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
As provided in the 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 offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any transfer or exchange of this
Certificate, but the Certificate Administrator or the Certificate Registrar may
require payment of a sum
A-2-6
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of this Certificate.
The Depositor, the Master Servicers, the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicers, the Special
Servicers, the Trustee, the Certificate Administrator, the Tax Administrator or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicers, the Special Servicers, the Trustee, the Certificate
Administrator, the Tax Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Certificate Administrator on behalf of the Trustee and required to be
paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the General Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund; and (iii)
the exchange by the Sole Certificateholder(s) of all the Certificates for all
Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
General Special Servicer or any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by the amendment, any third-party beneficiary. 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 this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
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The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Certificate Registrar
By:
-------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:
-------------------------------------
Authorized Representative
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by _____________________________________,
the Assignee named above, or ______________________________________________, as
its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2006-PWR12
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Closing Date: June 21, 2006
First Distribution Date: July 11, 2006
Master Servicer and Loan-Specific Special Servicer: Prudential Asset Resources,
Inc.
Master Servicer: Xxxxx Fargo Bank, National Association
General Special Servicer: ARCap Servicing, Inc.
Certificate No. V-___
Percentage Interest evidenced by this Class V Certificate: ______%
Aggregate Stated Principal Balance of the Pooled Mortgage Loans as of the
Closing Date ("Initial Pool Balance"): $2,079,030,155
Trustee: LaSalle Bank National Association
Certificate Administrator and Tax Administrator: Xxxxx Fargo Bank, National
Association
A-3-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. ANY RESALE, PLEDGE, 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 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN 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, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class V Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2006
(the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor (the "Depositor," which term includes any successor entity under the
Agreement),
A-3-2
Prudential Asset Resources, Inc., as a master servicer (in such capacity, a
"Master Servicer," which term includes any successor entity under the Agreement)
and as special servicer of the 0000 Xxxxxxxx Loan Group and the Tuscany Plaza
Loan Group (in such capacity, the "Loan-Specific Special Servicer" which term
includes any successor entity under the Agreement), Xxxxx Fargo Bank, National
Association, as a master servicer (in such capacity, a "Master Servicer," which
term includes any successor entity under the Agreement), as certificate
administrator (in such capacity, the "Certificate Administrator," which term
includes any successor entity under the Agreement) and as tax administrator (in
such capacity, the "Tax Administrator," which term includes any successor entity
under the Agreement), ARCap Servicing, Inc., as general special servicer (in
such capacity, the "General Special Servicer," which term includes any successor
entity under the Agreement), and LaSalle Bank National Association, as trustee
(the "Trustee," which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned thereto in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound. In the event that
there is any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the 11th day of such month (or, if such
11th day is not a Business Day, on the next succeeding Business Day), 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"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to all the Holders of the Class V Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Certificate Administrator by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Certificate
Administrator with wiring instructions no less than five Business Days prior to
the related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Account (if established), the Companion Note Custodial
Account(s), the Subordinate Note Custodial Accounts(s) and any other accounts
established pursuant to the Agreement may be made from time to time for purposes
other than, and, in
A-3-3
certain cases, prior to, distributions to Certificateholders, such purposes
including the reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans and the payment of interest on such advances and
expenses.
This Certificate is issuable in fully registered form only without
interest coupons. As provided in the Agreement and subject to certain
limitations therein set forth, this Certificate is exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or
any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) 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
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that such prospective Transferee is a Qualified Institutional Buyer
and such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, either Master Servicer, any Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), 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.
None of the Depositor, the Initial Purchasers, the Certificate
Administrator, the Trustee, the Master Servicers, the Special Servicers, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class V Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Underwriters, the Trustee, the Certificate
Administrator, the Tax Administrator, each Master Servicer, each Special
Servicer and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws or the provisions described in the six preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement 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 insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as
A-3-4
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code.
Except in limited circumstances, the Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for
one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Administrator to
confirm that, it has (i) sole investment discretion with respect to each such
account and (ii) full power to make the acknowledgments, representations,
warranties, certifications and/or agreements with respect to each such account
described above in this Certificate.
As provided in the 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 offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any transfer or exchange of this
Certificate, but the Certificate Administrator or 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 this
Certificate.
The Depositor, the Master Servicers, the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicers, the Special
Servicers, the Trustee, the Certificate Administrator, the Tax Administrator or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicers, the Special Servicers, the Trustee, the Certificate
Administrator, the Tax Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final
A-3-5
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the General Special Servicer or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund; and (iii)
the exchange by the Sole Certificateholder(s) of all the Certificates for all
Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
General Special Servicer or any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders to purchase from the Trust Fund
all the Mortgage Loans and each REO Property remaining therein. The exercise of
such right will effect early retirement of the Certificates; however, such right
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by the amendment, any third-party beneficiary. 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 this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Certificate Registrar
By:
------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:
------------------------------------
Authorized Representative
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________) and all applicable statements and notices should
be mailed to _________________________________________________________________.
This information is provided by _____________________________________,
the Assignee named above, or _________________________________________________,
as its agent.
A-3-8
EXHIBIT B
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITARY
B-1
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
ISSUER LETTER OF REPRESENTIONS
[To be Completed by Issuer and Co-Issuer(s), if applicable]
Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR 12
[Name of Issuer and Co-Issuer(s), if applicable]
SEE RIDER 1
[Security Description, including series designation if applicable]
SEE RIDER 1
[CUSIP Number of the Securities]
June 20, 2006
[Date]
[For Municipal Issues:
Underwriting Department--Eligibility; 25th Floor]
[For Corporate Issues:
General Counsel's Office; 22nd Floor]
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
This letter sets forth our understanding with respect to the Securities
represented by the CUSIP number referenced above (the "Securities"). Issuer
requests that The Depository Trust Company ("DTC") accept the Securities as
eligible for deposit at DTC. The DTC Participant, See Rider 1 (manager,
underwriter, or placement agent) will distribute the securities through DTC.
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with DTC's Rules with respect to the Securities, Issuer
represents to DTC that Issuer will comply with the requirements applicable to it
stated in DTC's Operational Arrangements (found at XXX.XXXX.XXX and
XXX.XXX.XXX), as they may be amended from time to time.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage
Securities Trust 2006-PWR 12
Note: By: Xxxxx Fargo Bank, National Association
not in its individual capacity, but solely
Schedule A contains statements that DTC as Certificate Administrator
believes accurately describe DTC, the (Issuer)
method of effecting book-entry transfers
of securities distributed through DTC,
and certain related matters. By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Received and Accepted: (Authorized Officer's Signature)
THE DEPOSITORY TRUST COMPANY
Xxxxxxx Xxxxxxx
(Print Name)
By: /s/
----------------------------------- 00 Xxxxxxxx, 00xx Xxxxx
(Xxxxxx Address)
[DTCC(R) LOGO]
The Depository Trust & Xxx Xxxx XX XXX 00000
Clearing Corporation (City) (State) (Country) (Zip Code)
(000) 000-0000
(Phone Number)
xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
(E-mail Address)
SCHEDULE A
(TO ISSUER LETTER OF REPRESENTATIONS)
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(PREPARED BY DTC--BRACKETED MATERIAL MAY BE APPLICABLE ONLY TO CERTAIN ISSUES)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $500 million, one certificate
will be issued with respect of each $500 million of principal amount, and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC, the world's largest securities depository is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2.2 million issues of U.S. and non-U.S. equity issues,
corporate and municipal debt issues, and money market instruments from over 100
countries that DTC's participants ("Direct Participants") deposit with DTC. DTC
also facilitates the post-trade settlement among Direct Participants of sales
and other securities transactions in deposited securities, through electronic
computerized book-entry transfers and pledges between Direct Participants'
accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation,
Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation
(NSCC, FICC, and EMCC, also subsidiaries of DTCC), as well as by the New York
Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, and clearing corporations that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). DTC has Standard & Poor's highest rating:
AAA. The DTC Rules applicable to its Participants are on file with the
Securities and Exchange Commission. More information about DTC can be found at
XXX.XXXX.XXX and XXX.XXX.XXX.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co., or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other DTC nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity
of the Direct Participants to whose accounts such Securities are credited, which
may or may not be the Beneficial Owners. The Direct and Indirect Participants
will remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment the transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the Security documents. For example, Beneficial
Owners of Securities may wish to ascertain that the nominee holding the
Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners. In the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request that copies of notices be
provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within as issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or
vote with respect to Securities unless authorized by a Direct Participant in
accordance with DTC's Procedures. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts upon DTC's receipt of funds and corresponding detail
information from Issuer of Agent, on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividend payments to Cede & Co. (or such
other nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as depository with respect
to the Securities at any time by giving reasonable notice to Issuer or Agent.
Under such circumstances, in the event that a successor depository is not
obtained, Security certificates are required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered to DTC.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
RIDER 1
Asset-Backed Securities
APPROX.
INITIAL TOTAL PRINCIPAL APPROX. INITIAL PASS-
CLASS BALANCE OR NOTIONAL AMOUNT THROUGH RATE CUSIP NUMBER
----- -------------------------- --------------------- ------------
A-1 $ 68,100,000 5.546% 00000X XX 4
A-2 $ 49,000,000 5.688% 07387J AB 2
A-3 $150,500,000 5.704% 07387J AC 0
A-AB $119,800,000 5.686% 07387J AD 8
A-4 $873,250,000 5.711% 07387J AE 6
A-1A $194,671,000 5.704% 07387J AF 3
A-M $207,903,000 5.750% 07387J AG 1
A-J $161,124,000 5.750% 07387J AH 9
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
ISSUER LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Co-Issuer(s), if applicable]
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-PWR 12
[Name of Issuer and Co-Issuer(s), if applicable]
See Rider 2
[Security Description, including series designation if applicable]
See Rider 2
[CUSIP Number of the Securities]
June 20, 2006
[Date]
[For Municipal Issues:
Underwriting Department--Eligibility; 25th Floor]
[For Corporate Issues:
General Counsel's Office; 22nd Floor]
THE DEPOSITARY TRUST COMPANY
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
This letter sets forth our understanding with respect to the Securities
represented by the CUSIP number referenced above (the "Securities"). Issuer
requests that The Depository Trust Company ("DTC") accept the Securities as
eligible for deposit at DTC. The DTC Participant, See Rider 2 (manager,
underwriter, or placement agent) will distribute the securities through DTC.
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with DTC's Rules with respect to the Securities, Issuer
represents to DTC that Issuer will comply with the requirements applicable to it
stated in DTC's Operational Arrangements (found at XXX.XXXX.XXX and
XXX.XXX.XXX), as they may be amended from time to time.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage
Securities Trust 2006-PWR 12
Note: By: Xxxxx Fargo Bank, National Association
not in its individual capacity, but solely
Schedule A contains statements that DTC as Certificate Administrator
believes accurately describe DTC, the (Issuer)
method of effecting book-entry transfers
of securities distributed through DTC,
and certain related matters. By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Received and Accepted: (Authorized Officer's Signature)
THE DEPOSITORY TRUST COMPANY
Xxxxxxx Xxxxxxx
(Print Name)
By: /s/
----------------------------------- 00 Xxxxxxxx, 00xx Xxxxx
(Xxxxxx Address)
[DTCC(R) LOGO]
THE DEPOSITORY TRUST & Xxx Xxxx XX XXX 00000
CLEARING CORPORATION (City) (State) (Country) (Zip Code)
(000) 000-0000
(Phone Number)
xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
(E-mail Address)
SCHEDULE A
(TO ISSUER LETTER OF REPRESENTATIONS)
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(PREPARED BY DTC--BRACKETED MATERIAL MAY BE APPLICABLE ONLY TO CERTAIN ISSUES)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceed $500 million, one certificate
will be issued with respect to each $500 million of principal amount, and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC, the world's largest securities depository, is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2.2 million issues of U.S. and non-U.S. equity issues,
corporate and municipal debt issues, and money market instruments from over 100
countries that DTC's Participants ("Direct Participants") deposit with DTC. DTC
also facilitates the post-trade settlement among Direct Participants of sales
and other securities transactions in deposited securities, through electronic
computerized book-entry transfers and pledges between Direct Participants'
accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation,
Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation
(NSCC, FICC, and EMCC, also subsidiaries of DTCC), as well as by the New York
Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, and clearing corporations that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). DTC has Standard & Poor's highest rating:
AAA. The DTC Rules applicable to its Participants are on file with the
Securities and Exchange Commission. More information about DTC can be found at
XXX.XXXX.XXX and XXX.XXX.XXX.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on bahalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To faciliate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co., or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other DTC nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity
of the Direct Participants to whose accounts such Securities are credited, which
may or may not be the Beneficial Owners. The Direct and Indirect Participants
will remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct to
Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. [Beneficial Owners of
Securities may wish to take certain steps to augment the transmission to them of
notices of significant events with respect to the Securities, such as
redemptions, tenders, defaults, and proposed amendments to the Security
documents. For example, Beneficial Owners of Securities may wish to ascertain
that the nominee holding the Securities for their benefit has agreed to obtain
and transmit notices to Beneficial Owner. In the alternative, Beneficial Owners
may wish to provide their names and addresses to the registrar and request that
copies of notices be provided directly to them.
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or
vote with respect to Securities unless authorized by a Direct Participant in
accordance with DTC's Procedures. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption Proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., as such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent, on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory of
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividend payments to Cede & Co. (or such
other nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer of Agent, disbursement of such payments to Direct
Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing} Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as depository with respect
to the Securities at any time by giving reasonable notice to Issue or Agent.
Under such circumstances, in the event that a successor depository is not
obtained, Security certificates are required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered to DTC.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
REPRESENTATIONS FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
Issuer Name: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
Description of Securities: Class X, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates
CUSIP NUMBER(S): See Rider 2
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS identification number that was different from any CUSIP or CINS
identification number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is ontained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are: [NOTE: ISSUER MUST REPRESENT
ONE OF THE FOLLOWING, AND SHALL CROSS OUT THE OTHERS/ Bear Xxxxxxx Commercial
Mortgage Securities Trust 2002-PWR9.
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent(2) acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with
----------
(1) A "Legally Restricted Securities" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted
Security" is a security that upon issuance and continually thereafter can
only be sold pursuant to Regulations S under the Securities Act, Rule 144A,
Rule 144, or in a transaction exempt from the registration requirements of
the Securities Act pursuant to Section 4 of the Securities Act and not
involving any public offering; provided, however, that once the security is
sold pursuant to the provisions of Rule 144, including Rule 144(k), it will
thereby cease to be a "Contractually Restricted Security." For purposes of
this definition, in order for a depositary receipt to be considered a
"Legally or Contractually Restricted Security," the underlying security
must also be an "Legally or Contractually Restricted Security."
(2) Agent shall be defined as Depositary, Trustee, Trust Company, Transfer
Agent or Paying Agent as such definition applies in the DTC Letter of
Representations to which this rider may be attached.
[DTCC(R) LOGO]
THE DEPOSITORY TRUST & CLEARING CORPORATION
respect to the securities at any time by giving reasonable notice to Issuer or
Agent. Under any of the aforementioned circumstances, at DTC's request, Issuer
and Agent shall cooperate fully with DTC by taking appropriate action to make
available one or more separate certificates evidencing Securities to any DTC
Participant ("Participant") having Securities to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is record owner
of the Securities, Cede & Co. shall be entitled to all applicable voting rights
and receive the full amount of all distributions payable with respect thereto.
Issuer and Agent acknowledge that DTC shall treat any Participant having
Securities credited to its DTC accounts as entitled to the full benefits of
ownership of such Securities. Without limiting the generality of the preceding
sentences, Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC account as entitled to receive
distributions (and voting rights, if any) in respect of the Securities, and to
receive from DTC certificates evidencing Securities. Issuer and Agent recognize
that DTC does not in any way undertake to, and shall not have any responsibility
to, monitor or ascertain the compliance of any transactions in the Securities
with any of the provisions: (a) of Rule 144A; (b) of other exemptions from
registration under the Securities Act or any other state or federal securities
laws; or (c) of the offering documents.
-2-
The Depository Trust Company
A subsidiary of The Depository Trust & Clearing Corporation
REPRESENTATIONS FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
Issuer Name: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
Description of Securities: Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates
CUSIP Number(s): See Rider 2
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally of Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS identification number that was different from any CUSIP or CINS
identification number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are: [NOTE: ISSUER MUST REPRESENT
ONE OF THE FOLLOWING, AND SHALL CROSS OUT THE OTHER.]
[included within Portal, a Self-Regulatory Organization System approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A (an "SRO
Rule 144A System").]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent(2) acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with
----------
(1) A "Legally Restricted Security" is a security that is restricted security,
as defined in Rule 144(a)(3). A "Contractually Restricted Security" is a
security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Security Act, Rule 144A, Rule 144, or in
a transaction exempt from the registration requirements of the Securities
Act pursuant to Section 4 of the Securities Act and not involving any
public offering; provided, however, that once the security is sold pursuant
to the provisions of Rule 144, including Rule 144(k), it will thereby cease
to be a "Contractually Restricted Security." For purposes of this
definition, in order for a depositary receipt to be considered a "Legally
or Contractually Restricted Security," the underlying security must also be
a "Legally or Contractually Restricted Security."
(2) Agent shall be defined as Depositary, Trustee, Trust Company, Transfer
Agent or Paying Agent as such definition applies in the DTC Letter of
Representations to which this rider may be attached.
[DTCC.(R) LOGO]
THE DEPOSITORY TRUST & CLEARING CORPORATION
respect to the Securities at any time by giving reasonable notice to Issuer or
Agent. Under any of the aforementioned circumstances, at DTC's request, Issuer
and Agent shall cooperate fully with DTC by taking appropriate action to make
available one or more separate certificates evidencing Securities to any DTC
Participant (Participant") having Securities credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities. Without limiting the generality of the
preceding sentence, Issuer and Agent acknowledge that DTC shall treat any
Participant having Securities credited to its DTC accounts as entitled to
receive distributions (and voting rights, if any) in respect of the Securities,
and to receive from DTC certificates evidencing Securities. Issuer and Agent
recognize that DTC does not in any way undertake to, and shall not have any
responsibility to, monitor or ascertain the compliance of any transactions in
the Securities with any of the provisions: (a) of Rule 144A; (b) of other
exemptions from registration under the Securities Act or any other state or
federal securities laws; or (c) of the offering documents.
-2-
RIDER 2
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated: Asset Backed
Securities
APPROX.
INITIAL TOTAL
PRINCIPAL BALANCE OR APPROX. INITIAL
CLASS CUSIP NUMBER NOTIONAL AMOUNT PASS-THROUGH RATE
----------------- ------------ -------------------- -----------------
Class X(1) No. 1 07387J AJ 5 $2,079,030,155 0.04464%
Class X-(2) Xx. 0 X00000 XX 0 $2,079,030,155 0.04464%
Class B(1) No. 1 07387J BN 5 $ 44,180,000 5.750%
Class B-(2) No. 2 U07578 AB 0 $ 44,180,000 5.750%
Class C(1) No. 1 07387J AL 0 $ 18,191,000 5.750%
Class C(2) No. 2 U07578 AC 8 $ 18,191,000 5.750%
Class D(1) No. 1 07387J AN 6 $ 33,785,000 5.750%
Class D(2) No. 2 U07578 AD 6 $ 33,785,000 5.750%
Class E(1) No. 1 07387J AQ 9 $ 20,790,000 5.750%
Class E(2) Xx. 0 X00000 XX 0 $ 20,790,000 5.750%
Class F(1) No. 1 07387J AS 5 $ 25,988,000 5.750%
Class F(2) No. 2 U07578 AF 1 $ 25,988,000 5.750%
Class G(1) No. 1 07387J AU 0 $ 20,790,000 5.750%
Class G(2) No. 2 U07578 AG 9 $ 20,790,000 5.750%
Class H(1) No. 1 07387J AW 6 $ 25,988,000 5.750%
Class H(2) No. 2 U07578 AH 7 $ 25,988,000 5.750%
Class J(1) No. 1 07387J AY 2 $ 7,796,000 5.470%
Class J(2) No. 2 U07578 AJ 3 $ 7,796,000 5.470%
Class K(1) No. 1 07387J BA 3 $ 7,797,000 5.470%
Class K(2) Xx. 0 X00000 XX 0 $ 7,797,000 5.470%
Class L(1) No. 1 07387J BC 9 $ 7,796,000 5.470%
Class L(2) No. 2 U07578 AL 8 $ 7,796,000 5.470%
Class M(1) No. 1 07387J BE 5 $ 5,198,000 5.470%
Class M(2) No. 2 U07578 AM 6 $ 5,198,000 5.470%
Class N(1) No. 1 07387J BG 0 $ 5,197,000 5.470%
Class N(2) No. 2 U07578 AN 4 $ 5,197,000 5.470%
Class O(1) No. 1 07387J BJ 4 $ 5,198,000 5.470%
Class O(2) No. 2 U07578 AP 9 $ 5,198,000 5.470%
Class P(1) No. 1 07387J BL 9 $ 25,988,155 5.470%
Class P(2) No. 2 U07578 AQ 7 $ 25,988,155 5.470%
EXHIBIT C-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
In connection with the administration of the Mortgage Files held by or
on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer (in such capacity, a "Master Servicer") and
as loan-specific special servicer, Xxxxx Fargo Bank, National Association as a
master servicer (in such capacity, a "Master Servicer"), as certificate
administrator and as tax administrator, ARCap Servicing, Inc. as general special
servicer and you as trustee (in such capacity, the "Trustee"), the undersigned
as Master Servicer with respect to the following described Mortgage Loan hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by or on behalf of you as Trustee with respect to such Mortgage Loan for
the reason indicated below.
Property Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
_____ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that
are required to be credited to the Collection Account pursuant to
the Pooling and Servicing Agreement, have been or will be so
credited.
_____ 2. Other. (Describe) _______________________________________________
_________________________________________________________________
C-1-1
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[__________________________________________]
as a Master Servicer
By:
----------------------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
In connection with the administration of the Mortgage Files held by or
on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer and as loan-specific special servicer (in
such capacity, the "Loan-Specific Special Servicer"), Xxxxx Fargo Bank, National
Association as a master servicer, as certificate administrator and as tax
administrator, ARCap Servicing, Inc. as general special servicer (in such
capacity, the "General Special Servicer") and you as trustee (in such capacity,
the "Trustee"), the undersigned as [Loan-Specific] [General] Special Servicer
with respect to the following described Mortgage Loan hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by or on
behalf of you as Trustee with respect to such Mortgage Loan for the reason
indicated below.
Property Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
_____ 1. The Mortgage Loan is being foreclosed.
_____ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan is being foreclosed, in which case the Mortgage File
(or such
C-2-1
portion thereof) will be returned when no longer required by us for such
purpose, or unless the Mortgage Loan has been paid in full or otherwise
liquidated, in which case the Mortgage File (or such portion thereof) will be
retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[__________________________________________]
as [Loan-Specific][General] Special Servicer
By:
----------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE ADMINISTRATOR REPORT
D-1-1
-----------------------------------------
For Additional Information please contact
CTSLink Customer Service
(000) 000-0000
[XXXXX FARGO LOGO] BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. Reports Available on the World Wide Web
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
DISTRIBUTION DATE STATEMENT
TABLE OF CONTENTS
STATEMENT SECTIONS PAGE(S)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 8
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Modified Loan Detail 24
Historical Liquidated Loan Detail 25
Historical Bond / Collateral Realized Loss Reconciliation 26
Interest Shortfall Reconciliation Detail 27 - 28
Defeased Loan Detail 29
Supplemental Reporting 30
DEPOSITOR
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Contact: General Information Number
Phone Number: (000) 000-0000
MASTER SERVICER
Prudential Asset Resources, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, XX 00000
Contact: Xxx Xxxxxxx
Phone Number: (000) 000-0000
MASTER SERVICER
Xxxxx Fargo Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx
Xxxxxxx, XX 00000
Contact: Xxxxx X. Xxx
Phone Number:
SPECIAL SERVICER
ARCap Servicing, Inc.
0000 X. X'Xxxxxx Xxxx., Xxx. 000
Xxxxxx, XX 00000
Contact: Xxxxx Xxxxxx
Phone Number: (000) 000-0000
This report has been compiled from information provided to Xxxxx Fargo Bank,
N.A. by various third parties, which may include the Master Servicers, Special
Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the
accuracy of information received from these third parties and assumes no duty to
do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for the
accuracy or completeness of information furnished by third parties.
Copyright, Xxxxx Fargo Bank, N.A. Page 1 of 30
-----------------------------------------
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CTSLink Customer Service
(000) 000-0000
[XXXXX FARGO LOGO] BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. Reports Available on the World Wide Web
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CERTIFICATE DISTRIBUTION DETAIL
Realized
Loss/
Pass- Additional Current
Through Original Beginning Principal Interest Prepayment Trust Fund Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Expenses Distribution Balance Level (1)
----------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
============================================================================================================================
Pass- Original Beginning Ending
Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
---------------------------------------------------------------------------------------------
X 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending balance of the designated class and
(ii) the ending certificate balance of all classes which are not subordinate to
the designated class and dividing the result by (A).
Copyright, Xxxxx Fargo Bank, N.A. Page 2 of 30
-----------------------------------------
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[XXXXX FARGO LOGO] BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. Reports Available on the World Wide Web
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CERTIFICATE FACTOR DETAIL
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Ending Balance
---------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-AB 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
-------------------------------------------------------------------
X 0.00000000 0.00000000 0.00000000 0.00000000
-------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 30
-----------------------------------------
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CTSLink Customer Service
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[XXXXX FARGO LOGO] BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC. Reports Available on the World Wide Web
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
RECONCILIATION DETAIL
ADVANCE SUMMARY
P & I Advances Outstanding 0.00
Servicing Advances Outstanding 0.00
Reimbursements for Interest on P & I 0.00
Advances paid from general collections
Reimbursements for Interest on Servicing 0.00
Advances paid from general collections
SERVICING FEE SUMMARY
Current Period Accrued Servicing Fees 0.00
Less Servicing Fees on Delinquent Payments 0.00
Less Reductions to Servicing Fees 0.00
Plus Servicing Fees on Delinquent Payments Received 0.00
Plus Adjustments for Prior Servicing Calculation 0.00
Total Servicing Fees Collected 0.00
CERTIFICATE INTEREST RECONCILIATION
Remaining
Net Aggregate Distributable Unpaid
Accrued Prepayment Distributable Certificate Additional Distributable
Certificate Interest Certificate Interest WAC CAP Trust Fund Interest Certificate
Class Accrual Days Interest Shortfall Interest Adjustment Shortfall Expenses Distribution Interest
----------------------------------------------------------------------------------------------------------------------------------
A-1 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
X 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
OTHER REQUIRED INFORMATION
Available Distribution Amount (1)
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
Principal Distribution Amount
Loan Group 1 0.00
Loan Group 2 0.00
Aggregate Unpaid Principal Balance Outstanding
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
Aggregate Stated Principal Balance after current Distribution Date
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
Aggregate Stated Principal Balance before current Distribution Date
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
--------------------------------------------------------
--------------------------------------------------------
Total
========================================================
Copyright, Xxxxx Fargo Bank, N.A. Page 5 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CASH RECONCILIATION DETAIL
TOTAL FUNDS COLLECTED
INTEREST:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
----
TOTAL INTEREST COLLECTED 0.00
PRINCIPAL:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
----
TOTAL PRINCIPAL COLLECTED 0.00
OTHER:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
----
TOTAL OTHER COLLECTED 0.00
----
TOTAL FUNDS COLLECTED 0.00
====
TOTAL FUNDS DISTRIBUTED
FEES:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
----
TOTAL FEES 0.00
ADDITIONAL TRUST FUND EXPENSES:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
----
TOTAL ADDITIONAL TRUST FUND EXPENSES 0.00
INTEREST RESERVE DEPOSIT 0.00
PAYMENTS TO CERTIFICATEHOLDERS & OTHERS:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
----
TOTAL PAYMENTS TO CERTIFICATEHOLDERS & OTHERS 0.00
----
TOTAL FUNDS DISTRIBUTED 0.00
====
Copyright, Xxxxx Fargo Bank, N.A. Page 6 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
RATINGS DETAIL
Original Ratings Current Ratings (1)
--------------------- ---------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
----------------------------------------------------------
X-0
X-0
X-0
X-XX
X-0
A-1A
A-M
A-J
X
B
C
D
E
F
G
H
J
K
L
M
N
O
P
----------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time
of original issuance.
X - Designates that the above rating agency did not rate any classes in
this transaction at the time of original issuance.
N/A - Data not available this period.
(1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain
rating information, if any, from such rating agency. The current ratings
were obtained directly from the applicable rating agency within 30 days of
the payment date listed above. The ratings may have changed since they were
obtained. Because the ratings may have changed, you may want to obtain
current ratings directly from the rating agencies.
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Copyright, Xxxxx Fargo Bank, N.A. Page 7 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
AGGREGATE POOL
SCHEDULED BALANCE
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
STATE (3)
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
See footnotes on last page of this section.
Copyright, Xxxxx Fargo Bank, N.A. Page 8 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
AGGREGATE POOL
DEBT SERVICE COVERAGE RATIO
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
NOTE RATE
% of
Note # of Scheduled Agg. WAM Weighted
Rate loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
PROPERTY TYPE (3)
% of
# of Scheduled Agg. WAM Weighted
Property Type Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
SEASONING
% of
# of Scheduled Agg. WAM Weighted
Seasoning loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
See footnotes on last page of this section.
Copyright, Xxxxx Fargo Bank, N.A. Page 9 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS)
Anticipated % of
Remaining # of Scheduled Agg. WAM Weighted
Term (2) loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS)
Remaining % of
Amortization # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
REMAINING STATED TERM (FULLY AMORTIZING LOANS)
% of
Remaining Stated # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
AGE OF MOST RECENT NOI
% of
Age of Most # of Scheduled Agg. WAM Weighted
Recent NOI loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases, the most
recent DSCR provided by the Servicer is used. To the extent that no DSCR is
provided by the Servicer, information from the offering document is used.
The Trustee makes no representations as to the accuracy of the data
provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date balance of each
property as disclosed in the offering document.
Copyright, Xxxxx Fargo Bank, N.A. Page 10 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP I
SCHEDULED BALANCE
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
STATE (3)
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
See footnotes on last page of this section.
Copyright, Xxxxx Fargo Bank, N.A. Page 11 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP I
DEBT SERVICE COVERAGE RATIO
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
NOTE RATE
% of
Note # of Scheduled Agg. WAM Weighted
Rate loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
PROPERTY TYPE (3)
% of
# of Scheduled Agg. WAM Weighted
Property type Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
SEASONING
% of
# of Scheduled Agg. WAM Weighted
Seasoning loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
See footnotes on last page of this section.
Copyright, Xxxxx Fargo Bank, N.A. Page 12 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP I
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS)
Anticipated % of
Remaining # of Scheduled Agg. WAM Weighted
Term (2) loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS)
Remaining % of
Amortization # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
REMAINING STATED TERM (FULLY AMORTIZING LOANS)
% of
Remaining Stated # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
AGE OF MOST RECENT NOI
% of
Age of Most # of Scheduled Agg. WAM Weighted
Recent NOI loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases, the most
recent DSCR provided by the Servicer is used. To the extent that no DSCR is
provided by the Servicer, information from the offering document is used.
The Trustee makes no representations as to the accuracy of the data
provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date balance of each
property as disclosed in the offering document.
Copyright, Xxxxx Fargo Bank, N.A. Page 13 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP II
SCHEDULED BALANCE
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
STATE (3)
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
See footnotes on last page of this section.
Copyright, Xxxxx Fargo Bank, N.A. Page 14 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP II
DEBT SERVICE COVERAGE RATIO
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
NOTE RATE
% of
Note # of Scheduled Agg. WAM Weighted
Rate loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
PROPERTY TYPE (3)
% of
# of Scheduled Agg. WAM Weighted
Property type Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
SEASONING
% of
# of Scheduled Agg. WAM Weighted
Seasoning loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
See footnotes on last page of this section.
Copyright, Xxxxx Fargo Bank, N.A. Page 15 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
GROUP II
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS)
Anticipated % of
Remaining # of Scheduled Agg. WAM Weighted
Term (2) loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS)
Remaining % of
Amortization # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
REMAINING STATED TERM (FULLY AMORTIZING LOANS)
Remaining % of
Stated # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
AGE OF MOST RECENT NOI
% of
Age of Most # of Scheduled Agg. WAM Weighted
Recent NOI loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
====================================================================
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases, the most
recent DSCR provided by the Servicer is used. To the extent that no DSCR is
provided by the Servicer, information from the offering document is used.
The Trustee makes no representations as to the accuracy of the data
provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date balance of each
property as disclosed in the offering document.
Copyright, Xxxxx Fargo Bank, N.A. Page 16 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
MORTGAGE LOAN DETAIL
Property Anticipated
Loan Type Interest Principal Gross Repayment
Number ODCR (1) City State Payment Payment Coupon Date
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Totals
=============================================================================
Neg. Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Maturity Amort Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number Date (Y/N) Balance Balance Date Date Amount (2) (3)
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Totals
=======================================================================================
(1) Property Type Code
MF - Multi-Family
RT - Retail
HC - Health Care
IN - Industrial
WH - Warehouse
MH - Mobile Home Park
OF - Office
MU - Mixed Use
LO - Lodging
SS - Self Storage
OT - Other
(2) Resolution Strategy Code
1 - Modification
2 - Foreclosure
3 - Bankruptcy
4 - Extension
5 - Note Sale
6 - DPO
7 - REO
8 - Resolved
9 - Pending Return to Master Servicer
10 - Deed in Xxxx Xx Xxxxxxxxxxx
00 - Xxxx Xxxxxx
12 - Reps and Warranties
13 - Other or TBD
(3) Modification Code
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
Copyright, Xxxxx Fargo Bank, N.A. Page 17 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
NOI DETAIL
Most Most
Ending Most Most Recent Recent
Scheduled Recent Recent NOI Start NOI End
Loan Number ODCR Property Type City State Balance Fiscal NOI NOI Date Date
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Total
================================================================================================
Copyright, Xxxxx Fargo Bank, N.A. Page 18 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
PRINCIPAL PREPAYMENT DETAIL
Principal Prepayment Amount Prepayment Penalties
Offering Document -------------------------------------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Percentage Premium Yield Maintenance Charge
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
HISTORICAL DETAIL
Delinquencies
-----------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
-----------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
Copyright, Xxxxx Fargo Bank, N.A. Page 20 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
DELINQUENCY LOAN DETAIL
Offering # of Paid Current Outstanding Status of Resolution
Loan Document Months Through P & I P & I Mortgage Strategy
Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2)
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Totals
=========================================================================================
Servicing Actual Outstanding
Loan Transfer Foreclosure Principal Servicing Bankruptcy REO
Number Date Date Balance Advances Date Date
------------------------------------------------------------------------
------------------------------------------------------------------------
Totals
========================================================================
(1) Status of Mortgage Loan
A - Payments Not Received But Still in Grace Period
B - Late Payment But Less Than 1 Month Delinquent
0 - Current
1 - One Month Delinquent
2 - Two Months Delinquent
3 - Three or More Months Delinquent
4 - Assumed Scheduled Payment (Performing Matured Loan)
7 - Foreclosure
9 - REO
(2) Resolution Strategy Code
1 - Modification
2 - Foreclosure
3 - Bankruptcy
4 - Extension
5 - Note Sale
6 - DPO
7 - REO
8 - Resolved
9 - Pending Return to Master Servicer
10 - Deed In Xxxx Xx Xxxxxxxxxx
00 - Xxxx Xxxxxx
12 - Reps and Warranties
13 - Other or TBD
Copyright, Xxxxx Fargo Bank, N.A. Page 21 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
SPECIALLY SERVICED LOAN DETAIL - PART 1
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property
Date Number Cross-Reference Date Code (1) Balance Type (2) State
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Net Remaining
Distribution Interest Actual Operating NOI Note Maturity Amortization
Date Rate Balance Income Date DSCR Date Date Term
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
(1) Resolution Strategy Code
1 - Modification
2 - Foreclosure
3 - Bankruptcy
4 - Extension
5 - Note Sale
6 - DPO
7 - REO
8 - Resolved
9 - Pending Return to Master Servicer
10 - Deed In Xxxx Xx Xxxxxxxxxxx
00 - Xxxx Xxxxxx
12 - Reps and Warranties
13 - Other or TBD
(2) Property Type Code
MF - Multi-Family
RT - Retail
HC - Health Care
IN - Industrial
WH - Warehouse
MH - Mobile Home Park
OF - Office
MU - Mixed use
LO - Lodging
SS - Self Storage
OT - Other
Copyright, Xxxxx Fargo Bank, N.A. Page 22 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
SPECIALLY SERVICED LOAN DETAIL - PART 2
Offering Resolution Site Other REO
Distribution Loan Document Strategy Inspection Phase 1 Appraisal Appraisal Property
Date Number Cross-Reference Code(1) Date Date Date Value Revenue Comment
-----------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
1 - Modification
2 - Foreclosure
3 - Bankruptcy
4 - Extension
5 - Note Sale
6 - DPO
7 - REO
8 - Resolved
9 - Pending Return to Master Servicer
10 - Deed In Xxxx Xx Xxxxxxxxxxx
00 - Xxxx Xxxxxx
12 - Reps and Warranties
13 - Other or TBD
Copyright, Xxxxx Fargo Bank, N.A. Page 23 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
MODIFIED LOAN DETAIL
Offering Pre-Modification Post-Modification
Loan Document Pre-Modification Post-Modification Interest Interest Modification Modification
Number Cross-Reference Balance Balance Rate Rate Date Description
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 24 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
HISTORICAL LIQUIDATED LOAN DETAIL
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses * Value or BPO Other Proceeds Liquidation
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Current Total
-------------------------------------------------------------------------------------------------
Cumulative Total
-------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
Copyright, Xxxxx Fargo Bank, N.A. Page 25 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
HISTORICAL BOND/COLLATERAL LOSS RECONCILIATION DETAIL
Prior
Aggregate Realized Amounts
Offering Beginning Realized Loss Covered by Interest
Distribution Document Liquidation Loss on Applied to Credit (Shortages)/
Date Cross-Reference at Balance Loans Certificates Support Excesses
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------
Realized (Recoveries)/
Modification Loss Applied Recoveries Losses
/Appraisal Additional to of Realized Applied to
Distribution Reduction (Recoveries) Certificates Losses Paid Certificate
Date Adj. /Expenses to Date as Cash Interest
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 26 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
INTEREST SHORTFALL RECONCILIATION DETAIL - PART 1
Stated Current
Offering Principal Ending Special Servicing Fees
Document Balance at Scheduled ------------------------------
Cross-Reference Contribution Balance Monthly Liquidation Work Out
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Totals
=======================================================================
Modified
Interest
Offering Non-Recoverable Interest Rate Additional
Document (PPIS) (Scheduled on (Reduction) Trust Fund
Cross-Reference ASER Excess Interest) Advances /Excess Expense
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
================================================================================
Copyright, Xxxxx Fargo Bank, N.A. Page 27 of 30
-----------------------------------------
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XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES @ xxx.xxxxxxx.xxx/xxxx
CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
INTEREST SHORTFALL RECONCILIATION DETAIL - PART 2
Reimb of Advances
to the Servicer
------------------
Stated Current Left to
Offering Principal Ending Reimburse Other
Document Balance at Scheduled Current Master (Shortfalls)/
Cross-Reference Contribution Balance Month Servicer Refunds Comments
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
Totals
=====================================================================================
Interest Shortfall Reconciliation Detail Part 2
Total 0.00
=====================================================================================
Interest Shortfall Reconciliation Detail Part 1
Total 0.00
=====================================================================================
Total Interest Shortfall Allocated to Trust 0.00
=====================================================================================
Copyright, Xxxxx Fargo Bank, N.A. Page 28 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
DEFEASED LOAN DETAIL
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 29 of 30
-----------------------------------------
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CORPORATE TRUST SERVICES SERIES 2006-PWR12 -----------------------------------------
0000 XXX XXXXXXXXX XXXX PAYMENT DATE: 07/11/2006
XXXXXXXX, XX 00000-0000 DETERMINATION DATE: 07/3/2006 RECORD DATE: 06/30/2006
SUPPLEMENTAL REPORTING
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 30 of 30
EXHIBIT D-2
MINIMUM INFORMATION FOR CERTIFICATE ADMINISTRATOR REPORT
(1) the date of such Distribution Date, and of the Record Date,
Interest Accrual Period, and Determination Date for such Distribution Date;
(2) the aggregate Certificate Principal Balance or Notional Amount of
each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date;
(3) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of the
Class Principal Balance thereof;
(4) the amount of the distribution on such Distribution Date to the
Holders of each Class of REMIC III Certificates allocable to Distributable
Certificate Interest;
(5) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for such Distribution Date pursuant to Section 4.03(a);
(6) the aggregate amount and general purpose of Servicing Advances
that have been made by the Master Servicers, the Special Servicers and the
Trustee with respect to the Mortgage Loans;
(7) (A) the aggregate amount of servicing compensation in respect of
the Mortgage Pool (separately identifying the amount of each category of
compensation) paid to each Master Servicer, each Primary Servicer and each
Special Servicer during the related Collection Period, (B) the aggregate amount
of compensation in respect of the Mortgage Pool (separately identifying the
amount of each category of compensation) to the Trustee and the Certificate
Administrator and (C) the aggregate amount of servicing compensation in respect
of each Non-Trust-Serviced Pooled Mortgage Loan (separately identifying the
amount of each category of compensation) paid to the parties under the related
Non-Trust Servicing Agreement during the collection period thereunder that is
most recently ended;
(8) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution Date;
(9) the number, aggregate unpaid principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the Pooled
Mortgage Loans (but not any successor REO Mortgage Loans to Pooled Mortgage
Loans) as of the close of business on the related Determination Date (or, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most
recently ended collection period thereunder);
(10) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder) and aggregate Stated
D-2-1
Principal Balance (immediately after such Distribution Date) of Pooled Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent
90 or more days, and (D) not delinquent but constituting Specially Serviced
Mortgage Loans or in foreclosure but not constituting a n REO Mortgage Loan;
(11) with respect to any REO Property that was included (or an
interest in which was included) in the Trust Fund as of the close of business on
the related Determination Date (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, as of the end of the most recently ended collection period
thereunder), the loan number of the related Pooled Mortgage Loan, the book value
of such REO Property and the amount of REO Revenues and other amounts, if any,
Received by the Trust with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value of
such REO Property as expressed in the most recent appraisal thereof and the date
of such appraisal;
(12) the total payments and other collections Received by the Trust
during the related Collection Period, the fees and expenses paid therefrom (with
an identification of the general purpose of such fees and expenses and the party
receiving such fees and expenses) and the Available Distribution Amount for such
Distribution Date;
(13) the amount of the distribution on such Distribution Date to the
Holders of each Class of REMIC III Certificates allocable to Prepayment Premiums
and/or Yield Maintenance Charges;
(14) the Distributable Certificate Interest and Accrued Certificate
Interest in respect of each Class of REMIC III Certificates for such
Distribution Date or the related Interest Accrual Period, as applicable;
(15) the Pass-Through Rate for each Class of REMIC III Certificates
for the Interest Accrual Period related to such Distribution Date;
(16) the Principal Distribution Amount and the Unadjusted Principal
Distribution Amount for such Distribution Date, separately identifying the
respective components thereof (and, in the case of any Principal Prepayment or
other unscheduled collection of principal Received by the Trust during the
related Collection Period, the loan number for the related Pooled Mortgage Loan
and the amount of such prepayment or other collection of principal);
(17) the Class Principal Balance of each Class of Principal Balance
Certificates and the Class Notional Amount of each Class of Interest-Only
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein pursuant to
Section 4.04 on such Distribution Date;
(18) (A) the loan number for each Required Appraisal Loan (or, in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, with a similar status under
the related Non-Trust Servicing Agreement) and any related Appraisal Reduction
Amount (including an itemized calculation thereof) as of the related
Determination Date and (B) the aggregate Appraisal Reduction Amount for all
Required Appraisal Loans (or, in the case of a Non-Trust-Serviced
D-2-2
Pooled Mortgage Loan, with a similar status under the related Non-Trust
Servicing Agreement) as of the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder);
(19) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution Date (in
the case of subclauses (A), (B) and (E)), aggregate Cut-off Date Balance (in the
case of subclauses (C) and (D)), weighted average extension period (except in
the case of subclause (B) and which shall be zero in the case of subclause (C)),
and weighted average anticipated extension period (in the case of subclause (B))
of Pooled Mortgage Loans (A) as to which the maturity dates have been extended,
(B) as to which the maturity dates are in the process of being extended, (C)
that have paid off and were never extended, (D) as to which the maturity dates
had previously been extended and have paid off and (E) as to which the maturity
dates had been previously extended and are in the process of being further
extended;
(20) any unpaid Distributable Certificate Interest in respect of each
Class of REMIC III Certificates after giving effect to the distributions made on
such Distribution Date, and if the full amount of the Principal Distribution
Amount was not distributed on such Distribution Date, the portion of the
shortfall affecting each Class of Principal Balance Certificates;
(21) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated thereto;
(22) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date (or,
in the case of a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the
most recently ended collection period thereunder);
(23) with respect to any Pooled Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (or, in the case
of a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder), (A) the loan number thereof, (B) the nature
of the Liquidation Event and, in the case of a Final Recovery Determination, a
brief description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in connection
with such Liquidation Event (separately identifying the portion thereof
allocable to distributions on the Certificates), and (D) the aggregate amount of
any Realized Loss and Additional Trust Fund Expenses in connection with such
Liquidation Event;
(24) with respect to any REO Property as to which a Final Recovery
Determination was made during the related Collection Period (or, in the case of
a Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder), (A) the loan number of the related Pooled
Mortgage Loan, (B) a brief description of the basis for the Final Recovery
Determination, (C) the aggregate of all Liquidation Proceeds and other amounts
Received by the Trust with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the
D-2-3
Certificates), (D) the aggregate amount of any Realized Loss and Additional
Trust Fund Expenses in respect of the related REO Pooled Mortgage Loan in
connection with such Final Recovery Determination and (E), if available, the
Appraised Value of such REO Property as expressed in the most recent appraisal
thereof and the date of such appraisal;
(25) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool at the close of business on
the related Determination Date and the aggregate amount of any interest accrued
and payable to a Master Servicer or the Trustee in respect of any such
xxxxxxxxxxxx X&X Advances in accordance with Section 4.03 as of the close of
business on such related Determination Date and (B) the aggregate amount of
unreimbursed Servicing Advances (and/or comparable advances made in respect of a
Non-Trust-Serviced Pooled Mortgage Loan under a Non-Trust Servicing Agreement)
that had been outstanding with respect to the Mortgage Pool as of the close of
business on the related Determination Date (or, in the case of a
Non-Trust-Serviced Pooled Mortgage Loan, as of the end of the most recently
ended collection period thereunder) and the aggregate amount of interest accrued
and payable to the Master Servicers, the Special Servicers or the Trustee (or,
if applicable, to a comparable party under the Non-Trust Servicing Agreement) in
respect of such unreimbursed Servicing Advances in accordance with Section
3.11(g) (or, if applicable, any such comparable advance(s) in accordance with
the related Non-Trust Servicing Agreement) as of the close of business on such
related Determination Date (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, as of the end of the most recently ended collection period
thereunder);
(26) the aggregate amount of any interest on Advances in respect of
the Mortgage Pool paid to the Master Servicers and the Trustee or any other
party hereto during the related Collection Period in accordance with Section
3.11(g) and/or Section 4.03(d) (and the aggregate amount of interest on
servicing advances in respect of Non-Trust-Serviced Pooled Mortgage Loan under a
Non-Trust Servicing Agreement as of the most recently ended collection period
thereunder);
(27) a loan-by-loan listing of any Pooled Mortgage Loan that was
defeased during the related Collection Period;
(28) the amount of Excess Liquidation Proceeds held in the Excess
Liquidation Proceeds Account as of the end of the related Collection Period;
(29) the amount of the distribution made to the Holder of the Class R
Certificates on such Distribution Date;
(30) with respect to any Pooled Mortgage Loan that was the subject of
any material modification, extension or waiver during the related Collection
Period, (A) the loan number thereof, (B) the unpaid principal balance thereof
and (C) a brief description of such modification, extension or waiver, as the
case may be;
(31) with respect to any Pooled Mortgage Loan as to which an uncured
and unresolved Material Breach or Material Document Defect is alleged to exist,
(A) the loan number thereof, (B) the unpaid principal balance thereof, (C) a
brief description of such alleged
D-2-4
Material Breach or Material Document Defect, as the case may be, and (D) the
status of such alleged Material Breach or Material Document Defect, as the case
may be, including any actions known to the Certificate Administrator that are
being taken by or on behalf of the related Pooled Mortgage Loan Seller;
(32) with respect to any Pooled Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection Period
(or, in the case of an REO Acquisition of a Non-Trust-Serviced Pooled Mortgage
Loan pursuant to the related Non-Trust Servicing Agreement, during the most
recently ended collection period thereunder), the loan number of such Pooled
Mortgage Loan and the Stated Principal Balance of such Pooled Mortgage Loan as
of the related Acquisition Date;
(33) the aggregate of (A) all Realized Losses incurred during the
related Collection Period and, as of the related Determination Date, from the
Closing Date and (B) all Additional Trust Fund Expenses (with a description
thereof) incurred during the related Collection Period and, as of the related
Determination Date, from the Closing Date;
(34) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution Date;
and
(35) the Certificate Factor for each Class of REMIC III Certificates
immediately following such Distribution Date.
In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (5), (6), (7) through (11),
(18), (22), (23) through (27), and (30) through (34) above, insofar as the
underlying information is solely within the control of the Depositor, the
Special Servicers or the Master Servicers, the Certificate Administrator may,
absent manifest error, conclusively rely on the reports to be provided by the
Depositor, the Special Servicers or the Master Servicers, as the case may be.
D-2-5
EXHIBIT E-1
FORM OF ARCAP INTEREST ON ADVANCE RECONCILIATION REPORT
The report shall set forth, for each Pooled Mortgage Loan for which
any Advance Interest has been paid, (i) the amount of Advance Interest, (ii) the
amount of Default Charges available to offset such Advance Interest (per Section
3.26 of the Pooling and Servicing Agreement) and (iii) the net amount of such
Advance Interest giving effect to such offset.
E-1
EXHIBIT E-2
FORM OF ARCAP MORTGAGE LOANS DELINQUENT REPORT
MORTGAGE LOANS DELINQUENCY REPORT
As of Month End ______________
Deal Name
OUTSTANDING OUTSTANDING FIRST
LOAN LOAN PRO-SUPP PROPERTY ENDING SCHEDULED LATE UNALLOCATED P & I SERVICING PAID DUE GRACE
NBR OFFICER ID NAME SCH.PRIN.BAL. PAYMENT FEES SUSPENSE ADVANCES ADVANCES TO DATE DATE DAYS COMMENTS
----------------------------------------------------------------------------------------------------------------------------
SPECIALLY SERVICED LOANS
E-2
EXHIBIT X-0
XXXX XX XXXXX X&X ADVANCES AS OF REMITTANCE DATE REPORT
----------------------
[DEAL NAME] ADVANCES DETAIL REPORT
[DEAL SERIES] ----------------------
DISTRIBUTION DATE: [INSERT]
[TO BE COMPLETED AS OF MASTER
SERVICER REMITTANCE DATE]
GROSS
PRINCIPAL INTEREST ADMIN NET SERVICING INTEREST TOTAL ACTUAL
TAB BORROWERS PAID TO ADVANCE ADVANCE FEE ASER INTEREST T & I ADVANCE ON ADVANCE PRINCIPAL
LOAN NUMBER NO NAME DATE BALANCE BALANCE PORTION AMOUNT ADVANCE ADVANCE BALANCE ADVANCES BALANCE BALANCE
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
TOTALS
=========================================================================================================================
E-3
EXHIBIT E-4
FORM OF ARCAP REALIZED LOSS REPORT
Items
that
REALIZED LOSS FORM (PREPARED BY Instructions to affect
SPECIAL AND MASTER SERVICERS) MS and Trustee CH*
----------------------------------------------------------------------------------------------------------------------
PORTFOLIO NAME
SERVICER ID:
MAP
TEMPLATE
FIELD TO
LOAN
PERIODIC (APPLICABLE TO FINAL RECOVERY
FIELD: DETERMINATION/REALIZED LOSS) DATE: 4/15/2004
-------- -----------------------------------------------------------------------------------------------
TOTAL FUNDS RECEIVED ON CORRECTED MORTGAGE LOAN AND
SPECIALLY SERVICED MORTGAGE LOAN:
Sales Proceeds or 3,600,000.00
Payoff Proceeds
Insurance Proceeds --
Suspense Balance --
Tax & Insurance --
Reserve Balance
- Other Reserve --
Balance
- Other Proceeds --
------------
- TOTAL FUNDS RECEIVED 3,600,000.00
- LESS: LIQUIDATION EXPENSES
- Broker Fees 95,105.19
- Other Selling --
Expenses
------------
- 95,105.19
------------
L45 PROCEEDS AVAILABLE 3,504,894.91
-----------------------------------------------------------------------------------------------
1) AMOUNTS DUE SERVICERS AND
TRUSTEE:
INCLUDES CURRENT PERIOD AND ACCRUED
SERVICING FEES AND OTHER FEES:
(EXCLUDES ITEMS FROM ADDITIONAL TRUST
FUND EXPENSES)
L109 A Liquidation Fee to SS on SS 35,048.95
loan
L108 B Workout Fee on Corrected --
Mtg. loan
New1 C Master Servicing Fees --
New1 D Special Servicing Fees --
New1 E Trustee Fees --
New1 F Other Fees --
L37 G P & I Advances (net) --
L103 H Interest on Advances- P & I 12,514.30
L38 I T&I Advances --
L103 J Interest on Advances- T&I --
L39 K Servicing Advances (other Expense --
Advance oustanding)
L103 L Interest on --
Advances-Servicing Advances
- TOTAL 47,563.25
2) AMOUNTS HELD BACK FOR FUTURE PAYMENT:
place in suspense
until legal
New A Other Unpaid Fees and expenses 3,000.00 final invoice
received
New B Other amounts --
- TOTAL 3,000.00
3) ACCRUED INTEREST (CURRENT PERIOD AND PRIOR
INTEREST SHORTFALLS)
L23 A Current Scheduled Interest (net of fees) 36,863.48 x
L35 B Cumulative Aser Amount 50,000.00 x
New2 C Deemed non-recoverable interest 695,006.76 x
(prior shortfall)
New2 D Deemed non-recoverable interest (paid -- x
from trust principal)
New2 E Other unpaid interest -- x
------------
- TOTAL 781,870.24 x
4) ADDITIONAL TRUST FUND EXPENSES (PRIOR
INTEREST SHORTFALLS OR PRINCIPAL LOSSES)
New3 A Special Servicing Fees 2,000.00 x
New3 B Work Out fees (Corrected Mortgage Loan) -- x
New3 C Interest on Advances 15,000.00 x
New3 D Other expenses: (Inspection by SS, -- x
Environmental, legal etc.)
New3 E Unliquidated Advances (work-out delayed -- x
reimb.paid from trust-principal)
New3 F Deemed Non-Recoverable Principal 1,282,322.37 x
Advances (paid from trust-Principal)
New3 G Deemed Non-Recoverable Servicing 2,000,000.00 x
Advances (paid from trust-Principal)
- TOTAL 3,299,322.37 x
------------
L46 TOTAL #1 THROUGH #4 - LIQUIDATION EXPENSES 4,131,755.86
------------
L27 NET PROCEEDS (PROCEEDS AVAILABLE LESS #1
THRU #4) (626,861.05) x
------------
(Proceeds available for Principal
Distribution) (If negative, no proceeds
available for distribution)
------------
L6 BEGINNING SCHEDULED 5,833,393.01 x
PRINCIPAL BALANCE
------------
REALIZED LOSS CALCULATION 6,460,254.06 x
-----------
L47 REALIZED LOSS TO TRUST (PER 5,833,393.01
DEFINITION IN PSA)
-----------------------------------------------------------------------------------------------
New4 IF REALIZED LOSS > BEGINNING SCHEDULED
PRINCIPAL BALANCE ( IF POSITIVE NUMBER) 626,861.05
(REFER TO PSA FOR ALLOCATION) (OPTIONAL)
- A Amounts allocated to Interest --
shortfall--Current Period
- B Amount applied to Interest shortfall or 626,861.05
principal loss--Prior Period
- C Amount to Realized Loss > than STB, --
allocate to current period principal
- D Other method per PSA
-----------------------------------------------------------------------------------------------
ADDITIONAL PROCEEDS RECEIVED AFTER FINAL
RECOVERY DETERMINATION/REALIZED LOSS
AMOUNTS DISTRIBUTED AS REIMBURSEMENT OF
UNFUNDED PRINCIPAL BALANCE REDUCTIONS
(PRIOR REALIZED LOSSES) (OPTIONAL) x
Class that received
Date Description Amount funds (optional)
-------- ----------- ------ -------------------
New5 5/8/2004 2000
0
subtotal Additional Proceeds 2,000.00
-----------------------------------------------------------------------------------------------
ADDITIONAL EXPENSES AFTER FINAL RECOVERY DETERMINATION/REALIZED
LOSS ALLOCATED TO INTEREST SHORTFALLS
Class that received
Date Description Amount funds (optional) x
-------- ----------- ------ -------------------
New5 5/8/2004 Legal 1500
expense 0
subtotal Additional Expenses 1,500.00
------------
CUMULATIVE NET ADJUSTMENT TO TRUST 500.00
-----------------------------------------------------------------------------------------------
Signature and Title of Servicing Officer Date
CC: SPECIAL SERVICER, MASTER SERVICER, TRUSTEE,
ATTACHMENT TO DISTRIBUTION STATEMENT
-----------------------------------------------------------------------------------------------
E-4
EXHIBIT E-5
ARCAP NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
ARCap Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e. no
spaces, no dashes, no underscores, etc.
The Prospectus Loan I.D. should have five leading characters, a decimal point,
and the Mortgaged Property # (1,2,3,etc).
The Statement Types are: OS Operating Statement (PDF or TIF format)
OSAR Operating Statement Analysis Report
& NOI ADJ Worksheet (Excel Format
named individually, not rolling
format)
FS Borrower Financial Statement (PDF or TIF)
RR Rent Roll (Excel or PDF or TIF)
PI Property Inspection (Excel format)
HS Healthcare Survey
FR Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 2002 or
2003 or 2004.
THE MONTHS COVERED BY THE STATEMENT SHOULD RANGE FROM 01 TO 12.
E-5
EXHIBIT E-6
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
Information Format Frequency
----------------------------------------- ------------ -------------------------------
Property Operating Statement Actual PDF/TIF Quarterly per Section 3.12/4.02
of PSA
Property Rent Roll Actual PDF/TIF Quarterly per Section 3.12/4.02
of PSA
Other Financials as required by Mortgage Actual PDF/TIF Per Section 3.12/4.02 of PSA
Loan Documents
Property Inspection Actual PDF/TIF Within 30 days of annual or
other inspection per Section
3.12 of PSA
P&I Advances as of Remittance Date Monthly Excel Master Servicer Remittance Date
Report(1)
Mortgage Loans Delinquent Report (2) Monthly Excel End of each month per Section
4.02 of PSA
Interest on Advance Reconciliation Report Monthly Excel Distribution Date
CMSA Setup File (Issuer/Trustee/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 (Trustee) Monthly Excel/PDF Monthly/Distribution Date
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Trustee) 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 the Determination Date for
the related Distribution Date, a list of all Pooled Mortgage Loans delinquent
and requiring a P&I Advance as of the P&I Advance Date.
(2) As of the last day of the month (30th), for all delinquencies reported in FN
1 above, a list of all Pooled Mortgage Loans which remain delinquent for such
distribution period (along with the number of days delinquent) accompanied with
any reason, in the applicable Master Servicer's opinion, for the Pooled Mortgage
Loans continued delinquency, along with an explanation of the applicable Master
Servicer's attempts to cure.
E-6
The General Special Servicer 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 addresses:
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. 341 (972) 580-1688 ext. 323
E-7
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of June 21, 2006 (the
"Closing Date") of $__________] [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to _________________ (the "Transferee") of the
captioned Certificates (the "Transferred Certificates") pursuant to Section 5.02
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of June 1, 2006 among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as Depositor, Prudential Asset Resources, Inc., as a Master Servicer and as
Loan-Specific Special Servicer, Xxxxx Fargo Bank, National Association, as a
Master Servicer, as Certificate Administrator and as Tax Administrator, ARCap
Servicing, Inc., as General Special Servicer, and LaSalle Bank National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined 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, and for the benefit of the Trustee and the
Depositor, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates 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 Transferred
Certificate, any interest in a
F-1
Transferred 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 Transferred Certificate, any interest in a Transferred
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security with any
person in any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
________________________________________
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of June 21, 2006 (the
"Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the
"Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
[through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants)] in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Loan-Specific Special Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as General Special Servicer,
and LaSalle Bank National Association, as Trustee. All capitalized terms used
herein and not otherwise defined 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, and for the benefit of the
Trustee and the Depositor 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 is being
made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificates for its own account or for the account of another Qualified
Institutional
F-2A-1
Buyer, and understands that such Transferred Certificates may be resold, pledged
or transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
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 and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
________________________________________
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2A-2
ANNEX 1 TO EXHIBIT F-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 mortgage pass-through certificates 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").
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 [each of the Transferee's equity owners] 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.
___ 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 Transferred Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale in the case of a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2A-3
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 Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such date of
sale in the case of 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.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
F-2A-4
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the Transferee
used the cost of such securities to such Person, unless such Person 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 such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The 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.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
________________________________________
Print Name of Transferee
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
F-2A-5
ANNEX 2 TO EXHIBIT F-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 certificates (the
"Transferred Certificates") 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, 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).
F-2A-6
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
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 will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:
-----------------------------------
Name:
-----------------------------------
Title:
----------------------------------
IF AN ADVISER:
Print Name of Transferee
Date:
----------------------------------
F-2A-7
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of June 21, 2006 (the
"Closing Date") of $__________] [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
[through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants)] in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Loan-Specific Special Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as General Special Servicer,
and LaSalle Bank National Association, as Trustee. All capitalized terms used
herein and not otherwise defined 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, and for the benefit of the
Trustee and the Depositor that:
1. 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.
F-2B-1
2. Transferee understands that (a) the Transferred 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, Certificate Administrator or the Certificate Registrar is obligated
so to register or qualify the Transferred Certificates, and (c) neither the
Transferred Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold 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 a transaction which is exempt
from such registration and qualification and the Certificate Registrar has
received (A) a certificate from the prospective transferor substantially in the
form attached as Exhibit F-1 to the Pooling and Servicing Agreement and a
certificate from the prospective transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Pooling and Servicing
Agreement; or (B) an Opinion of Counsel satisfactory to the Certificate
Administrator to the effect that, among other things, the transfer may be made
without registration under the Securities Act, together with the written
certification(s) as to the facts surrounding the transfer from the prospective
transferor and/or prospective transferee upon which such Opinion of Counsel is
based.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES OR BLUE
SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS. ANY RESALE, PLEDGE, 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 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION
OUTSIDE OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS
AND SALES MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO 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 (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE
F-2B-3
OR SUCH INTEREST HEREIN 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, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred 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 Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred 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 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 nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all 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 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.
F-2B-3
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
----------------------------------------
(Transferee)
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
----------------------------------------
(Nominee)
By:
------------------------------------
Name:
Title:
F-2B-4
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of June 21, 2006 (the "Closing
Date") of $[__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as depositor (the "Depositor"), Prudential
Asset Resources, Inc., as a master servicer and as loan-specific special
servicer, Xxxxx Fargo Bank National Association, as a master servicer, as
certificate administrator and as tax administrator, ARCap Servicing, Inc., as
general special servicer, and LaSalle Bank National Association, as trustee (the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, the Trustee and the 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 Transfer to it of
the Transferor's interest in the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring such interest in the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred 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, Certificate
F-2C-1
Administrator or the Certificate Registrar is obligated so to register or
qualify the Transferred Certificates, and (c) neither the Transferred
Certificates nor any security issued in exchange therefor or in lieu
thereof 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 Transferor desiring
to effect such transfer has received either (A) a certificate from the
prospective transferee substantially in the form attached either as Exhibit
F-2C to the Pooling and Servicing Agreement or (B) an opinion of counsel to
the effect that the transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each
Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS. ANY RESALE,
PLEDGE, 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 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION
OUTSIDE OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH
OFFERS AND SALES MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH
JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO 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 (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN 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, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2C-2
4. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and any distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, and (e) all related matters, that
it has requested.
Very truly yours,
----------------------------------------
(Transferee)
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2C-3
ANNEX 1 TO EXHIBIT F-2C
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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (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 acquiring interests in the Transferred Certificates (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] [each of the Transferee's equity owners] 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.
___ 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 Transferred Certificates 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.
___ 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
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2C-4
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 Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of 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.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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. 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 (i) securities of issuers that are affiliated with such Person,
(ii) securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any such Person, the
Transferee used the cost of such securities to such Person, unless such Person
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.
F-2C-5
Further, in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person 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 Transfers to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
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 acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. 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 acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
(Transferee)
By:
------------------------------------
Name:
Title:
Date:
F-2C-6
ANNEX 2 TO EXHIBIT F-2C
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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (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 acquiring interests in 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
F-2C-7
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
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
Transfers to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
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 acquisition of any interest in the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
(Transferee or Adviser)
By:
-----------------------------------
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
F-2C-8
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of June 21, 2006 (the "Closing
Date") of $[__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 2006, among Bear Xxxxxxx Commercial Mortgage
Securities Inc., as depositor, Prudential Asset Resources, Inc., as a master
servicer and as loan-specific special servicer, Xxxxx Fargo Bank, National
Association, as a master servicer, as certificate administrator and as tax
administrator, ARCap Servicing, Inc., as general special servicer, and LaSalle
Bank National Association, as trustee. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to and agrees with you, and for the benefit of the Depositor, that the
Transferee is not a United States Securities Person.
For purposes of this certification, "United States Securities Person" means
(i) any natural person resident in the United States, (ii) any partnership or
corporation organized or incorporated under the laws of the United States, (iii)
any estate of which any executor or administrator is a United States Securities
Person, other than any estate of which any professional fiduciary acting as
executor or administrator is a United States Securities Person if an executor or
administrator of the estate who is not a United States Securities Person has
sole or shared investment discretion with respect to the assets of the estate
and the estate is governed by foreign law, (iv) any trust of which any trustee
is a United States Securities Person, other than a trust of which any
professional fiduciary acting as trustee is a United States Securities Person if
a trustee who is not a United States Securities Person has sole or shared
investment discretion with respect to the trust assets and no beneficiary of the
trust (and no settlor if the trust is revocable) is a United States Securities
Person, (v) any agency or branch of a foreign entity located in the United
States,
F-2D-1
unless the agency or branch operates for valid business reasons and is engaged
in the business of insurance or banking and is subject to substantive insurance
or banking regulation, respectively, in the jurisdiction where located, (vi) any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a United
States Securities Person, (vii) any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States, other than one
held for the benefit or account of a non-United States Securities Person by a
dealer or other professional fiduciary organized, incorporated or (if an
individual) resident in the United States, or (viii) any partnership or
corporation if (a) organized or incorporated under the laws of any foreign
jurisdiction and (b) formed by a United States Securities Person principally for
the purpose of investing in securities not registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), unless it is
organized or incorporated, and owned, by "accredited investors" (as defined in
Rule 501(a)) under the Securities Act, who are not natural persons, estates or
trusts; provided, however, that the International Monetary Fund, the
International Bank for Reconstruction and Development, the Inter-American
Development Bank, the Asian Development Bank, the African Development Bank, the
United Nations and their agencies, affiliates and pension plans, any other
similar international organizations, their agencies, affiliates and pension
plans shall not constitute United States Securities Persons.
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: __________, _____
By:
------------------------------------
As, or agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
F-2D-2
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer and as
loan-specific special servicer, Xxxxx Fargo Bank, National Association, as a
master servicer, as certificate administrator and as tax administrator, ARCap
Servicing, Inc., as general special servicer, and LaSalle Bank National
Association, as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Depositor, that:
1. The Transferor is the lawful owner of the right to receive the
Excess Servicing Fees with respect to the Serviced Mortgage Loans for which
_________________ is the applicable Master Servicer (the "Excess Servicing Fee
Right"), with the full right to transfer the Excess Servicing Fee Right 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 the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right 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 the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security with any person in any manner,
(d) made any general solicitation with respect to the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security 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
F-3A-1
distribution of the Excess Servicing Fee Right under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the Excess
Servicing Fee Right a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the Excess
Servicing Fee Right pursuant to the Securities Act or any state securities laws.
Very truly yours,
By:
------------------------------------
Name:
Title:
F-3A-2
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[APPLICABLE MASTER SERVICER]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc., as a master servicer and as
loan-specific special servicer, Xxxxx Fargo Bank, National Association, as a
master servicer, as certificate administrator and as tax administrator, ARCap
Servicing, Inc., as general special servicer, and LaSalle Bank National
Association, as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
the Depositor and the applicable Master Servicer, that:
1. The Transferee is acquiring the right to receive Excess Servicing
Fees with respect to the Serviced Mortgage Loans as to which __________________
is the applicable Master Servicer (the "Excess Servicing Fee Right") 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 Excess Servicing Fee Right
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, Certificate Administrator or the Certificate Registrar
is obligated so to register or qualify the Excess Servicing Fee Right, and (c)
the Excess Servicing Fee Right may not be resold 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
F-3B-1
and qualification and (A) the Depositor has received a certificate from the
prospective transferor substantially in the form attached as Exhibit F-3A to the
Pooling and Servicing Agreement, and (B) each of the applicable Master Servicer
and the Depositor have received a certificate from the prospective transferee
substantially in the form attached as Exhibit F-3B to the Pooling and Servicing
Agreement.
3. The Transferee understands that it may not sell or otherwise
transfer the Excess Servicing Fee Right or any interest therein except in
compliance with the provisions of Section 3.11 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right 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 the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security with any person in any manner,
(d) made any general solicitation with respect to the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action with respect to the Excess Servicing Fee Right, any interest in
the Excess Servicing Fee Right 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 Excess Servicing Fee Right under the Securities Act, would
render the disposition of the Excess Servicing Fee Right a violation of Section
5 of the Securities Act or any state securities law or would require
registration or qualification of the Excess Servicing Fee Right 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 the Excess Servicing Fee Right, any interest in the Excess Servicing
Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Excess Servicing Fee Right and any payments thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, and
(e) all related matters that it has requested.
6. The Transferee is (a) a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act or (b) 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 Excess Servicing Fee Right; 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.
F-3B-2
7. The Transferee agrees (i) to keep all information relating to the
Trust, the Trust Fund and the parties to the Pooling and Servicing Agreement,
and made available to it, confidential, (ii) not to use or disclose such
information in any manner which could result in a violation of any provision of
the Securities Act or would require registration of the Excess Servicing Fee
Right or any Certificate pursuant to the Securities Act, and (iii) not to
disclose such information, and to cause its officers, directors, partners,
employees, agents or representatives not to disclose such information, in any
manner whatsoever, in whole or in part, to any other Person other than such
holder's auditors, legal counsel and regulators, except to the extent such
disclosure is required by law, court order or other legal requirement or to the
extent such information is of public knowledge at the time of disclosure by such
holder or has become generally available to the public other than as a result of
disclosure by such holder; provided, however, that such holder may provide all
or any part of such information to any other Person who is contemplating an
acquisition of the Excess Servicing Fee Right if, and only if, such Person (x)
confirms in writing such prospective acquisition and (y) agrees in writing to
keep such information confidential, not to use or disclose such information in
any manner which could result in a violation of any provision of the Securities
Act or would require registration of the Excess Servicing Fee Right or any
Certificates pursuant to the Securities Act and not to disclose such
information, and to cause its officers, directors, partners, employees, agents
or representatives not to disclose such information, in any manner whatsoever,
in whole or in part, to any other Person other than such Persons' auditors,
legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess Servicing
Fee Right shall not have any rights under the Pooling and Servicing Agreement
except as set forth in Section 3.11(a) of the Pooling and Servicing Agreement,
and that the Excess Servicing Fee Rate may be reduced to the extent provided in
the Pooling and Servicing Agreement.
Very truly yours,
By:
------------------------------------
Name:
Title:
F-3B-3
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN PHYSICAL FORM)
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of June 21, 2006 (the
"Closing Date") of $__________] [evidencing a ____% Percentage
Interest in the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of June 1,
2006 among Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer and as Loan-Specific
Special Servicer, Xxxxx Fargo Bank, National Association, as a Master Servicer,
as Certificate Administrator and as Tax Administrator, ARCap Servicing, Inc., as
General Special Servicer, and LaSalle Bank National Association, as Trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee benefit
plan or arrangement, including an individual retirement account or annuity,
a Xxxxx plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including an insurance
company general account, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), nor (B) a Person who is directly or indirectly
purchasing the Transferred Certificates on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or
G-1-1
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, and the purchase and holding of such
Certificates by such Person are exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60.
___ The Transferred Certificates are Class ___ Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on one of the
individual prohibited transaction exemptions issued by the U.S. Department
of Labor to __________________ (PTE 90-30 or 90-24), and such Transferred
Certificates have an investment grade rating on the date of this letter,
and such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored (within the
meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, either Master Servicer, any Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Borrower with respect to
any Mortgage Loan or group of Mortgage Loans that represents more than 5%
of the aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or by
an Affiliate of any such Person, and (Z) agrees that it will obtain from
each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such Transferee, if
a Plan, satisfies the requirements of the immediately preceding clauses (X)
and (Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
Very truly yours,
[TRANSFEREE]
By:
-------------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class ____
Certificates [having an initial aggregate [Principal Balance]
[Notional Amount] as of June 21, 2006 (the "Closing Date") of
$__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Loan-Specific Special Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as General Special Servicer,
and LaSalle Bank National Association, as Trustee. All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit plan
or other retirement arrangement, including an individual retirement account
or annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including an insurance company general account, that is subject to Section
406 of ERISA or Section 4975 of the Code (each, a "Plan"), nor (B) a Person
who is directly or indirectly purchasing an interest in the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or with
assets of, a Plan;
___ The Transferee is using funds from an insurance company general account to
acquire an interest in the Transferred Certificates, and the purchase and
holding of such interest by such Person are exempt from the prohibited
transaction provisions of Section 406 of
G-2-1
ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or
___ The Transferred Certificates are Class ____ Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on one of the
individual prohibited transaction exemptions issued by the U.S. Department
of Labor to __________________ (PTE 90-30 or 90-24), and such Transferred
Certificates have an investment grade rating on the date of this letter,
and such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored (within the
meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, either Master Servicer, any Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Borrower with respect to
any Mortgage Loan or group of Mortgage Loans that represents more than 5%
of the aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or by
an Affiliate of any such Person, and (Z) agrees that it will obtain from
each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such Transferee, if
a Plan, satisfies the requirements of the immediately preceding clauses (X)
and (Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
[TRANSFEREE]
By:
------------------------------------
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(A)(6)(A) AND 860E(E)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Series
2006-PWR12 (the "Certificates") issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of June 1, 2006, among Bear Xxxxxxx Commercial Mortgage
Securities Inc., as Depositor, Prudential Asset Resources, Inc.,
as a Master Servicer and as Loan-Specific Special Servicer, Xxxxx
Fargo Bank, National Association, as a Master Servicer, as
Certificate Administrator and as Tax Administrator, ARCap
Servicing, Inc., as General Special Servicer, and LaSalle Bank
National Association, as Trustee
STATE OF )
) ss.: ____________________
COUNTY OF )
I, [_], under penalties of perjury, declare that, to the best of my
knowledge and belief, the following representations are true, correct and
complete, and being first sworn, depose and say that:
1. I am the [_] of [_] (the "Purchaser"), on behalf of which I have
the authority to make this affidavit.
2. The Purchaser is acquiring Class R Certificates representing [_]%
of the residual interest in each of the real estate mortgage investment conduits
(each, a "REMIC") designated as "REMIC I", "REMIC II" and "REMIC III",
respectively, relating to the Certificates for which an election has been or is
to be made under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is a Permitted Transferee (as defined in the Pooling
and Servicing Agreement) and is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the Class R Certificates for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership thereof, to a person that is not a
Permitted Transferee or to a Disqualified Organization. For the purposes hereof,
a Disqualified Organization is any of the following: (i) the United States, (ii)
any state or political subdivision thereof, (iii) any foreign government, (iv)
any international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in Section 521 of the Code) which is exempt from the tax imposed
H-1-1
by Chapter 1 of the Code unless such organization is subject to the tax imposed
by Section 511 of the Code, (vii) any organization described in Section
1381(a)(2)(C) of the Code, or (viii) any other entity designated as a
"disqualified organization" by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Class R Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the Class R Certificates is to
impede the assessment or collection of tax.
8. [Check the statement that applies]
o If the Transferor requires the safe harbor under Treasury Regulation
Section 1.860E-1 to apply:
____ a) In accordance with Treasury Regulation Section 1.860E-1, the
Purchaser (i) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury Regulations, as to which the income of Class R
Certificates will only be subject to taxation in the United States, (ii) has,
and has had in each of its two preceding fiscal years, gross assets for
financial reporting purposes (excluding any obligation of a person related to
the transferee within the meaning of Section 1.860E-1(c)(6)(ii) of the Treasury
Regulations or any other assets if a principal purpose for holding or acquiring
such asset is to satisfy this condition) in excess of $100 million and net
assets of $10 million, and (iii) hereby agrees only to transfer the Certificate
to another corporation meeting the criteria set forth in Treasury Regulation
Section 1.860E-1;
or
_____ b) The Purchaser is a United States Tax Person and the
consideration paid to the Purchaser for accepting the Class R Certificates is
greater than the present value of the
H-1-2
anticipated net federal income taxes and tax benefits ("Tax Liability Present
Value") associated with owning such Certificates, with such present value
computed using a discount rate equal to the "Federal short-term rate" prescribed
by Section 1274 of the Code as of the date hereof or, to the extent it is not,
if the Transferee has asserted that it regularly borrows, in the ordinary course
of its trade or business, substantial funds from unrelated third parties at a
lower interest rate than such applicable federal rate and the consideration paid
to the Purchaser is greater than the Tax Liability Present Value using such
lower interest rate as the discount rate, the transactions with the unrelated
third party lenders, the interest rate or rates, the date or dates of such
transactions, and the maturity dates or, in the case of adjustable rate debt
instruments, the relevant adjustment dates or periods, with respect to such
borrowings, are accurately stated in Exhibit A to this letter.
o If the Transferor does not require the safe harbor under Treasury
Regulation Section 1.860E-1 to apply:
_____ c) The Purchaser is a "United States person" as defined in
Section 7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is __________). The Purchaser is
not classified as a partnership under the Code (or, if so classified, all of its
beneficial owners are United States persons).
9. The Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class R Certificates as they
become due.
10. The Purchaser understands that it may incur tax liabilities with
respect to the Class R Certificates in excess of any cash flows generated by
such Certificates.
11. The Purchaser will not transfer the Class R Certificates to any
person or entity as to which the Purchaser has not received an affidavit
substantially in the form of this affidavit or to any person or entity as to
which the Purchaser has actual knowledge that the requirements set forth in
paragraphs 3, 4, 5, 7 or 9 hereof are not satisfied, or to any person or entity
with respect to which the Purchaser has not (at the time of such transfer)
satisfied the requirements under the Code to conduct a reasonable investigation
of the financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the Class R Certificates to a Disqualified Organization, an
agent thereof or a person that does not satisfy the requirements of paragraphs 7
and 9.
13. The Purchaser consents to the designation of the Tax Administrator
as the agent of the Tax Matters Person of the REMIC I, REMIC II and REMIC III
pursuant to Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
H-1-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
________________.
By:
------------------------------------
Name:
Title:
Personally appeared before me [_] known or proved to me to be the same
person who executed the foregoing instrument and to be a [_] of the Purchaser,
and acknowledged to me that he/she executed the same as his/her free act and
deed and as the free act and deed of the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
-----------------------------------
Notary Public
H-1-4
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Class R
Certificates, evidencing a ____% Percentage Interest in such
Class (the "Residual Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of June 1,
2006 among Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer and as Loan-Specific
Special Servicer, Xxxxx Fargo Bank, National Association, as a Master Servicer,
as Certificate Administrator and as Tax Administrator, ARCap Servicing, Inc., as
General Special Servicer, and LaSalle Bank National Association, as Trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, as follows:
1. No purpose of the Transferor relating to the transfer of the
residual interest 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 as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
H-2-1
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) 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 Interest 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.
Very truly yours,
By:
------------------------------------
(Transferor)
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the Pooling
and Servicing Agreement, dated as of June 1, 2006 (the "Agreement") among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and as Loan-Specific Special Servicer,
Xxxxx Fargo Bank, National Association, as a Master Servicer, as Certificate
Administrator and as Tax Administrator, ARCap Servicing, Inc., as General
Special Servicer, the undersigned as Trustee, and relating to Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-PWR12 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have respective meanings assigned to them in
the Agreement.
Notice is hereby given that ____________________________________ has
designated ________________________________ to serve as the [1675
Broadway][Tuscany Plaza][General] Special Servicer under the Agreement.
The designation of ____________________________ as Special Servicer
will become final if certain conditions are met and each Rating Agency delivers
to LaSalle Bank National Association, the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
[1675 Broadway][Tuscany Plaza][General] Special Servicer were to serve as such,
such event would not result in an Adverse Rating Event with respect to any Class
of the Certificates. Accordingly, such confirmation is hereby requested as soon
as possible.
I-1-1
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
----------------------------------------
Name:
Title:
Receipt acknowledged:
XXXXX'X INVESTORS SERVICE, INC.
By:
------------------------------------
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES,
A DIVISION OF THE XXXXXX-XXXX COMPANIES, INC.
By:
------------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[CERTIFICATE ADMINISTRATOR]
[TAX ADMINISTRATOR]
[TRUSTEE]
[MASTER SERVICERS]
[DEPOSITOR]
[SPECIAL SERVICERS]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement, dated
as of June 1, 2006 relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as [1675 Broadway][Tuscany
Plaza][General] Special Servicer under, and as defined in, the Agreement. The
undersigned hereby acknowledges and agrees that, as of the date hereof, it is
and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of [1675 Broadway][Tuscany Plaza][General]
Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 2.07 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
________________________________________
By:
------------------------------------
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12
TEXT:
See Exhibit I attached hereto and made a part hereof.
A sale by the Seller/Debtor of, or a grant by the Seller/Debtor of a security
interest in, any collateral described in this financing statement will violate
the rights of the Buyer/Secured Party listed in Item 3 above.
J-1
EXHIBIT I TO EXHIBIT J
SELLER/DEBTOR:
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BUYER/SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities Inc., 2006-PWR12
DESCRIPTION OF THE PROPERTY COVERED:
This Exhibit I is attached to and incorporated in a financing
statement pertaining to Bear Xxxxxxx Commercial Mortgage Securities Inc. as
depositor (referred to as the "Debtor" for the purpose of this financing
statement only), and LaSalle Bank National Association as trustee for the
holders of the Series 2006-PWR12 Certificates (referred to as the "Secured
Party" for purposes of this financing statement only), under that certain
Pooling and Servicing Agreement, dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among the Debtor as depositor, the Secured Party as
trustee, Prudential Asset Resources, Inc. as a master servicer (in such
capacity, a "Master Servicer") and as loan-specific special servicer (in such
capacity, a "Special Servicer"), Xxxxx Fargo Bank, National Association as a
master servicer (in such capacity, a "Master Servicer"), as certificate
administrator and as tax administrator and ARCap Servicing, Inc. as general
special servicer (in such capacity, a "Special Servicer"), relating to the
issuance of the Debtor's Commercial Mortgage Pass-Through Certificates, Series
2006-PWR12 (collectively, the "Series 2006-PWR12 Certificates"). Capitalized
terms used herein and not defined shall have the respective meanings given to
them in the Pooling and Servicing Agreement. The attached financing statement
covers all of the Debtor's right (including the power to convey title thereto),
title and interest in and to the Trust Fund created pursuant to the Pooling and
Servicing Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage
loans (the "Mortgage Loans") listed on the Pooled Mortgage Loan
Schedule, as the same may be updated from time to time, which
Pooled Mortgage Loan Schedule as of the Closing Date is attached
hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
J-2
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage
Note and Mortgage (collectively, with such related Mortgage Note
and Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by each of the Master
Servicers pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in each Collection
Account, (c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
5. All REO Property;
6. (a) the REO Account(s) required to be maintained by the Special
Servicers pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in the REO Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and
interest and the right to enforce the related payment
obligations, arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required to
be maintained by the Master Servicers or Special Servicers
pursuant to the Pooling and Servicing Agreement, and (b) all
funds from time to time on deposit in the Servicing Account(s)
and Reserve Account(s);
8. (a) the Excess Liquidation Proceeds Account(s) and the Interest
Reserve Account(s) required to be maintained by the Certificate
Administrator pursuant to the Pooling and Servicing Agreement,
and (b) all funds from time to time on deposit in the Excess
Liquidation Proceeds Account(s) and the Interest Reserve
Account(s);
9. (a) the Distribution Account required to be maintained by the
Certificate Administrator on behalf of the Buyer/Secured Party
pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and
interest and the right to enforce the related payment
obligations, arising from or under any such investments;
J-3
10. The rights of the Seller/Debtor under Sections 2, 3, 4 (other
than Section 4(c)) and 5 (and, to the extent related to the
foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each
Pooled Mortgage Loan Purchase Agreement;
11. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Mortgage Loan Documents and the
Pooling and Servicing Agreement, transferred to the Trust and to
be serviced by the Master Servicers or Special Servicers; and
12. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or substitutions
therefor.
THE SELLER/DEBTOR AND THE BUYER/SECURED PARTY INTEND THE TRANSACTIONS
CONTEMPLATED BY THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF
THE INTEREST IN THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER
MORTGAGE LOAN DOCUMENTS, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE
NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT
AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE OR THAT A
FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
BUYER/SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN
DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND
OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF
THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION,
NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A
FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
BUYER/SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT
TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION,
ANY PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS
MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
A SALE BY THE SELLER/DEBTOR OF, OR A GRANT BY THE SELLER/DEBTOR OF A SECURITY
INTEREST IN, ANY COLLATERAL DESCRIBED IN THIS
J-4
FINANCING STATEMENT WILL VIOLATE THE RIGHTS OF THE BUYER/SECURED PARTY.
J-5
EXHIBIT A TO EXHIBIT I TO EXHIBIT J
SCHEDULE OF MORTGAGE LOANS
[See Schedules I-A, I-B, I-C, I-D and I-E]
J-6
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
In accordance with the Pooling and Servicing Agreement, dated as of
June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Loan-Specific Special Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as General Special Servicer,
and LaSalle Bank National Association, as Trustee, with respect to the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-PWR12 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] of $___________
aggregate [Certificate Principal Balance/Certificate Notional
Amount] of the Class ____ Certificates.
2. The undersigned is requesting access to the following information
(the "Information"):
___ The information on the Master Servicer's internet website
pursuant to Section 4.02(f) of the Pooling and Servicing
Agreement.
___ The information on the Certificate Administrator's internet
website pursuant to Section 4.02(a) of the Pooling and
Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Certificate Administrator's disclosure to
the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in
K-1-1
evaluating the Information), and such Information will not,
without the prior written consent of the Certificate
Administrator, be disclosed by the undersigned or by its
officers, directors, partners employees, agents or
representatives in any manner whatsoever, in whole or in part;
provided that the undersigned may provide all or any part of the
Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest
therein, but only if such person or entity confirms in writing
such ownership interest or prospective ownership interest and
agrees to keep it confidential; and provided, further, that the
undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
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 Non-Registered Certificate pursuant to
Section 5 of the Securities Act.
All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing 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.
________________________________________
[CERTIFICATEHOLDER][BENEFICIAL
HOLDER OF A CERTIFICATE]
By:
----------------------------------
Name:
Title:
Telephone No.:
K-1-2
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
In accordance with the Pooling and Servicing Agreement, dated as of
June 1, 2006 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Loan-Specific Special Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as General Special Servicer,
and LaSalle Bank National Association, as Trustee, with respect to the Bear
Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-PWR12 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting access to the following information
(the "Information") for use in evaluating such possible
investment:
___ The information on the Master Servicer's internet
website pursuant to Section 4.02(f) of the Pooling and
Servicing Agreement.
___ The information on the Certificate Administrator's
internet website pursuant to Section 4.02(a) of the
Pooling and Servicing Agreement.
___ The information identified on the schedule attached
hereto pursuant to Section 8.12(b) of the Pooling and
Servicing Agreement.
3. In consideration of the Certificate Administrator's disclosure to
the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in making the investment decision described in
paragraph 1), and such
K-2-1
Information will not, without the prior written consent of the
Certificate Administrator, be disclosed by the undersigned or by
its officers, directors, partners employees, agents or
representatives in any manner whatsoever, in whole or in part;
provided that in the event the undersigned purchases any
Certificate or any interest in any Certificate, the undersigned
may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of
any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and
provided, further, that the undersigned may provide all or any
part of the Information to its auditors, legal counsel and
regulators.
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 Non-Registered Certificate pursuant to
Section 5 of the Securities Act.
All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing 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.
[PROSPECTIVE PURCHASER]
By:
------------------------------------
Name:
Title:
Telephone No.:
K-2-2
EXHIBIT L
FORM OF POWER OF ATTORNEY BY TRUSTEE
RECORDING REQUESTED BY:
[NAME OF MASTER SERVICER
OR SPECIAL SERVICER]
AND WHEN RECORDED MAIL TO:
[ADDRESS OF MASTER SERVICER OR
SPECIAL SERVICER]
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 for holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), does hereby nominate, constitute and appoint
[NAME OF MASTER SERVICER OR SPECIAL SERVICER], as [Master Servicer] [Special
Servicer] under the Pooling and Servicing Agreement ("[SHORT NAME]"), 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
[SHORT NAME] to service and administer the mortgage loans identified on Schedule
__ to the Pooling and Servicing Agreement in connection with the performance by
[SHORT NAME] of its duties as [Master Servicer] [Special Servicer] under the
Pooling and Servicing Agreement, giving and granting unto [SHORT NAME] 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 [SHORT NAME] shall lawfully do or cause to be done by virtue
hereof.
L-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this _____ day of _________, 20__.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for the holder of Bear
Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-PWR12
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
L-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ________________________________ before me, _________________________________
Date Name and Title of Officer (i.e., Y
our 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)
X-0
XXXXXXX X-0
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, issued
pursuant to the Pooling and Servicing Agreement dated as of June
1, 2006 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor,
Prudential Asset Resources, Inc., as a master servicer and as
loan-specific special servicer, Xxxxx Fargo Bank, National
Association, as a master servicer, as certificate administrator
and as tax administrator, ARCap Servicing, Inc., as general
special servicer, and LaSalle Bank National Association, as
trustee.
I, [identity of certifying individual], the senior officer in charge of
securitization for the Depositor, hereby certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-PWR12 (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.
M-1-1
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: (a) Xxxxx Fargo Bank,
National Association, as a Master Servicer; (b) Prudential Asset Resources,
Inc., as a Master Servicer and as a Special Servicer; (c) ARCap Servicing, Inc.,
as a Special Servicer; (d) Xxxxx Fargo Bank, National Association, as
Certificate Administrator; (e) Principal Global Investors, LLC, as a Primary
Servicer; (f) Nationwide Life Insurance Company, as a Primary Servicer; (g)
LaSalle Bank National Association, as Trustee; and (h) [names of sub-servicers].
Dated: _______________________
By:
-----------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
XXXX XX XXXXXXXX-XXXXX BACKUP CERTIFICATION
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, issued
pursuant to the Pooling and Servicing Agreement dated as of June
1, 2006 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor,
Prudential Asset Resources, Inc., as a master servicer and as
loan-specific special servicer, Xxxxx Fargo Bank, National
Association, as a master servicer, as certificate administrator
and as tax administrator, ARCap Servicing, Inc., as general
special servicer, and LaSalle Bank National Association, as
trustee, [./; and] [the Subservicing Agreement, dated as of (the
"Subservicing Agreement") between [identify parties].
I, [identity of certifying individual], hereby certify to the Depositor [and the
Master Servicer] and [its][their] 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 for the period ended December 31,
200[_] ("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;
M-2-1
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/Primary Servicing/Subservicing]
Agreement for the calendar year preceding the date of the Form 10-K is included
in the [Master Servicer/Special Servicer/Certificate
Administrator/Trustee/Primary Servicer/Subservicer] Periodic Reports;
4. Based on my knowledge and the compliance review conducted in preparing
the [Master Servicer/Special Servicer/Certificate Administrator/Trustee/Primary
Servicer/Subservicer]'s compliance statement under the [Pooling and
Servicing/Primary Servicing/Subservicing] Agreement in connection with Item 1123
of Regulation AB, and except as disclosed in the [Master Servicer/Special
Servicer/Certificate Administrator/Trustee/Primary Servicer/Subservicer]
Periodic Reports, the [Master Servicer/Special Servicer/Certificate
Administrator/Trustee/Primary Servicer/Subservicer] has fulfilled its
obligations under the [Pooling and Servicing/Primary 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/Primary 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 of
certificate administrator or other similar party; name of depositor; name of
master servicer; name of special servicer; name of primary servicer; name of
subservicer].
This Certification is being signed by me as an officer of the [Master
Servicer/Special Servicer/Certificate Administrator/Trustee/Primary
Servicer/Subservicer] responsible for reviewing the activities performed by the
[Master Servicer/Special Servicer/Certificate Administrator/Trustee/Primary
Servicer/Subservicer] under the [Pooling and Servicing/Primary
Servicing/Subservicing] Agreement.
Dated: ____________________________
----------------------------------------
Name:
Title:
M-2-2
EXHIBIT N
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[PARTIES TO POOLING AND SERVICING AGREEMENT]
[POOLED MORTGAGE LOAN SELLERS]
[CONTROLLING CLASS REPRESENTATIVE]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12
Ladies and Gentlemen:
In accordance with Section 2.02(b) of that certain Pooling and
Servicing Agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement") pursuant to which the certificates of the above-referenced series
were issued, the undersigned hereby certifies that, with respect to each
Original Pooled Mortgage Loan subject to the Pooling and Servicing Agreement,
and subject to the exceptions noted in the schedule of exceptions attached
hereto, that: (i) the original Mortgage Note specified in clause (i) of the
definition of "Mortgage File" and all allonges thereto, if any (or a copy of
such Mortgage Note, together with a lost note affidavit and indemnity certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii), (iii), (iv), (viii) (without regard to the
verification of the effective date with respect to a title policy or the date of
funding with respect to a title commitment), (x) (if the Pooled Mortgage Loan
Schedule specifies that a material portion of the interest of the Borrower in
the related Mortgaged Property consists of a leasehold interest) and (xx)
(solely in the case of the Pooled Mortgage Loans secured by the Mortgaged
Properties identified on the Pooled Mortgage Loan Schedule as "In Town Suites
Portfolio", "Marriott Courtyard Solana Beach", "Hilton Garden Inn Glastonbury",
"Hampton Inn Suites", "Hampton Inn & Suites Bemidji", "Hawthorn Suites
Franklin", "Best Western Miramar", "Staybridge Suites - Cincinnati North", "Best
Western Potomac Xxxxx", "Holiday Inn Express - Chesapeake, VA", "Radisson Hotel
- Kenosha", "Best Western Porterville", "Courtyard Marriott Orlando", "Xxxxxx
Xxxxxxx San Diego", "Days Inn Mission Bay", "Days Inn Encinitas", "Fairfield Inn
& Suites, (Bethlehem, PA)", "Country Inn & Suites by Xxxxxxx - Tucson", "Country
Inn & Suites Xxxxxxx" and "Comfort Inn North Dartmouth") of the definition of
"Mortgage File" have been received by it or a Custodian on its behalf; (ii) if
such report is due more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents or
an appropriate receipt of recording/filing therefor); (iii) all documents
received by the undersigned or any Custodian with respect to such Pooled
Mortgage Loan have been reviewed by the undersigned or by such Custodian on its
behalf and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Pooled
Mortgage Loan; and (iv) based on the examinations referred to in Sections
2.02(a) and 2.02(b) of the Pooling and Servicing Agreement and only as to the
foregoing
N-1
documents, the information set forth in the Pooled Mortgage Loan Schedule with
respect to the items specified in clause (iii)(A) and clause (vi) of the
definition of "Pooled Mortgage Loan Schedule" accurately reflects the
information set forth in the related Mortgage File.
Capitalized terms used but not defined herein shall have the meanings
given them in the Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
N-2
EXHIBIT O
FORM OF DEFEASANCE CERTIFICATION
FOR ANY LOAN THAT IS NOT AMONG TEN (10) LARGEST LOANS IN POOL, WITH OUTSTANDING
BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF OUTSTANDING POOL
BALANCE, WHICHEVER IS LESS
To: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: ______________
From: [PAR] [WFB], in its capacity as a Master Servicer (a "Master Servicer")
under the Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. as Depositor, Prudential Asset Resources, Inc. as a Master
Servicer and as Loan-Specific Special Servicer, Xxxxx Fargo Bank, National
Association as a Master Servicer, as Certificate Administrator and as Tax
Administrator, ARCap Servicing, Inc. as General Special Servicer and
LaSalle Bank National Association as Trustee.
Date: _________, 20___
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on the
Pooled Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified on
the Pooled 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.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Borrower has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the
type checked below:
O-1
____ a full defeasance of the payments scheduled to be due
in respect of the entire Stated Principal Balance of
the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the Stated Principal
Balance of the Mortgage Loan that represents ___% of
the entire Stated Principal Balance of the Mortgage
Loan and, under the Mortgage, has an allocated loan
amount of $____________ or _______% of the entire
Stated Principal Balance;
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto,
which exceptions the Master Servicer has determined, consistent
with the Servicing Standard, will have no material adverse effect
on the Mortgage Loan or the defeasance transaction:
a. The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were
satisfied in all material respects in completing the
defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section
2(a)(16) of the Investment Company Act of 1940 as amended
(15 U.S.C. 80A1), (ii) are listed as "Qualified Investments
for 'AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash
Flow Approach" in Standard & Poor's Public Finance Criteria
2000, as amended to the date of the defeasance, (iii) are
rated 'AAA' by Standard & Poor's, (iv) if they include a
principal obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to prepayment, call
or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
d. The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with
the Servicing Standard) that the defeasance will not result
in an Adverse REMIC Event.
e. The Master 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 Borrower was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings
O-2
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 Borrower designated a Single-Purpose Entity
(as defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Master Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter
described below contained statements that it reviewed a
broker or similar confirmation of the credit, of the
defeasance collateral to an Eligible Account (as defined in
the S&P Criteria) in the name of the Defeasance Obligor,
which account is maintained as a securities account by the
Trustee acting as a securities intermediary.
g. As securities intermediary, the Trustee is obligated to make
the scheduled payments on the Mortgage Loan from the
proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the
dates specified in the Mortgage Loan Documents or, in a
partial defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium
specified in the Mortgage Loan Documents (the "Scheduled
Payments").
h. The Master Servicer received from the Borrower written
confirmation from a firm of independent certified public
accountants, who were approved by the Master 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 Mortgage 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
O-3
any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance) for such
year.
i. The Master Servicer received opinions from counsel, who were
approved by the Master Servicer in accordance with the
Servicing Standard, that (i) the agreements executed by the
Borrower and/or the Defeasance Obligor in connection with
the defeasance are enforceable against them in accordance
with their terms except as such enforcement may be limited
by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditor's rights
generally, and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding
in equity or at law), and (ii) the Trustee will have a
perfected, first priority security interest in the
defeasance collateral described above.
j. The agreements executed in connection with the defeasance
(i) permit reinvestment of proceeds of the defeasance
collateral only in Permitted Investments (as defined in the
S&P Criteria), (ii) permit release of surplus defeasance
collateral and earnings on reinvestment to the Defeasance
Obligor or the Borrower only after the Mortgage Loan has
been paid in full, if any such release is permitted, (iii)
prohibit any subordinate liens against the defeasance
collateral, and (iv) provide for payment from sources other
than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the
securities intermediary for administering the defeasance and
the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
k. The Mortgage Loan is not among the ten (10) largest loans in
the Mortgage Pool. The entire Stated Principal Balance of
the Mortgage Loan as of the date of defeasance was
$___________ [$20,000,000 or less or less than five percent
of the Mortgage Pool balance, whichever is less] which is
less than 5% of the aggregate Certificate Principal Balance
of the Certificates as of the date of the most recent
Certificate Administrator Report received by us (the
"Current Report").
l. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total
of all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the aggregate
Certificate Balance of the Certificates as of the date of
the Current Report.
O-4
3. Certify that, in addition to the foregoing, the Master Servicer
has imposed such additional conditions to the defeasance (or
waived such conditions), subject to the limitations imposed by
the Mortgage Loan Documents, as are consistent with the Servicing
Standard.
4. 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 or will be
transmitted to the Trustee or Custodian on its behalf 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 Master Servicer as part of the Master
Servicer's Servicing File.
5. 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.
6. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did
constitute a Servicing Officer as of the date of the defeasance
described above.
7. Agree to provide copies of all items listed in Exhibit B to you
upon request.
O-5
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[PAR] [WFB]
as Master Servicer
By:
------------------------------------
Name:
Title:
O-6
EXHIBIT P
FORM OF OUTSIDE MASTER SERVICER NOTICE
[Date]
[OUTSIDE MASTER SERVICER]
[OUTSIDE TRUSTEE]
Re: Co-Lender Agreement, dated as of [_________], 200[_] (the
"Co-Lender Agreement") among [SPECIFY PARTIES]
Ladies and Gentlemen:
This notice is being delivered to you in connection with the Co-Lender
Agreement and pursuant to Section 3.02(c) of the Pooling and Servicing Agreement
dated as of June 1, 2006 (the "Agreement") among Bear Xxxxxxx Commercial
Mortgage Securities Inc., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Prudential Asset Resources, Inc., as a
master servicer (in such capacity, a "Master Servicer," which term includes any
successor entity under the Agreement) and as loan-specific special servicer (in
such capacity, the "Loan-Specific Special Servicer," which term includes any
successor entity under the Agreement), Xxxxx Fargo Bank, National Association,
as a master servicer (in such capacity, a "Master Servicer," which term includes
any successor entity under the Agreement), as certificate administrator (in such
capacity, the "Certificate Administrator," which term includes any successor
entity under the Agreement) and as tax administrator (in such capacity, the "Tax
Administrator," which term includes any successor entity under the Agreement),
ARCap Servicing, Inc., as general special servicer (in such capacity, the
"General Special Service," which term includes any successor entity under the
Agreement) and LaSalle Bank National Association, as trustee (the "Trustee,"
which term includes any successor entity under the Agreement), which Agreement
relates to the issuance of the Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-PWR12. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Co-Lender Agreement.
[Notice is hereby given that as of __________________, the "Closing
Date" under the Agreement, the Trustee is the holder of [the Note ___ Mortgage
Loan] [Loan ___] (as defined in the Co-Lender Agreement), and, in that capacity,
the Trustee assumes the rights and obligations of the [Note ____ Lender] [_____
Noteholder] under the Co-Lender Agreement.]
[You are hereby directed to remit to [Xxxxx Fargo Bank, National
Association][Prudential Asset Resources, Inc.], as Master Servicer, all amounts
payable to the [Note ___ Lender] [__ Noteholder] under the Co-Lender Agreement
and the governing Servicing Agreement, to the following account:
P-1
Account: [_________]
Account #: [_______]
Title: [[Xxxxx Fargo Bank, National Association][Prudential Asset
Resources, Inc.], as Master Servicer, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the registered holders
of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-PWR12, Collection
Account]
Location: [Xxxxx Fargo Bank, National Association][Prudential Asset
Resources, Inc.]
[You are hereby further directed to forward, deliver, or otherwise
make available to [Xxxxx Fargo Bank, National Association][Prudential Asset
Resources, Inc.], as Master Servicer, all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to the [Note ___ Lender] [___ Noteholder] under the
Co-Lender Agreement and the Non-Trust-Servicing Agreement, to the following:
[address/facsimile/email address/telephone number]]
[Please also be advised that [______________], as the initial
"Controlling Class Representative" under the Agreement is, to the fullest extent
permitted under the Co-Lender Agreement, entitled to exercise any rights and
powers of the Trustee, in its capacity as [Note ___ Lender] [___ Noteholder],
under Section ___ of the Co-Lender Agreement.]
[Please also be advised that a new Controlling Class Representative
has been appointed in accordance with Section 3.23(a) of the Agreement, which
new Controlling Class Representative is _________________________ [include
notice information] and such party is, to the fullest extent permitted under the
Co-Lender Agreement, entitled to exercise any rights and powers of the Trustee,
in its capacity as [Note ___ Lender] [___ Noteholder], under Section ___ of the
Co-Lender Agreement.]
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
c.c. [OTHER RELATED NON-POOLED NOTEHOLDERS]
P-2
EXHIBIT Q
FORM OF 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 ADDRESS
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Certificate Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-PWR12--SEC REPORT PROCESSING
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [11.06] [11.07] [11.09] of the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), by
and among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor,
Prudential Asset Resources, Inc., as a master servicer and as loan-specific
special servicer, Xxxxx Fargo Bank, N.A., as a master servicer, ARCap Servicing,
Inc., as general special servicer, Xxxxx Fargo Bank, N.A., as certificate
administrator and tax administrator, and LaSalle Bank National Association as
trustee. 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:
cc: Depositor
Q-1
EXHIBIT R
COPY OF PRIMARY SERVICER UNDERTAKING TO INDEMNIFY
R-1
PRIMARY SERVICER UNDERTAKING TO INDEMNIFY
Reference is made to the Pooling and Servicing Agreement, dated as of
June 1, 2006 (the "Pooling and Servicing Agreement"), by and among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as depositor, Prudential Asset Resources,
Inc., as a master servicer and as loan-specific special servicer, Xxxxx Fargo
Bank, National Association ("WFB"), as a master servicer, certificate
administrator and tax administrator, ARCap Servicing, Inc., as general special
servicer, LaSalle Bank National Association, as trustee, and ABN AMRO Bank N.V.,
as fiscal agent. Capitalized terms used and not defined herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
As additional consideration for the execution of the Nationwide
Primary Servicing Agreement by WFB as a Master Servicer and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Nationwide as Primary Servicer hereby agrees, for the benefit of
the Trust and the other Persons set forth in Section 3.22(l) of the Pooling and
Servicing Agreement, to perform the obligations imposed on Nationwide as Primary
Servicer under Section 3.22(l) of the Pooling and Servicing Agreement as if such
obligations were fully set forth in this instrument. This undertaking shall not
be waived, rescinded or otherwise modified without the written consent of each
of the entities set forth in such Section 3.22(l) and written confirmation from
each Rating Agency for the Rated Certificates to the effect that such waiver,
rescission or other modification shall not result in an Adverse Rating Event
with respect to any Class of Rated Certificates rated by such Rating Agency.
IN WITNESS WHEREOF, the Primary Servicer has caused its name to be signed
hereto by its officer thereunto duly authorized as of the 21st day of June,
2006.
NATIONWIDE LIFE INSURANCE COMPANY,
as Primary Servicer
By:
-------------------------------
Name:
Title:
SCHEDULE I-A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
S-I-A-1
SELLER
LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS CITY
----- -------- -------------------------------- ------ --------------------------------------------- --------------------
1 6106485 Woodland Mall 1 0000 00xx Xxxxxx XX Xxxxx Xxxxxx
0 0000000 0000 Xxxxxxxx 1 0000 Xxxxxxxx New York
3 6106457 Orange Plaza 1 000-000 Xxxxx Xxxxx 000 Xxxx Xxxxxxxxxx
7 6106455 Embassy Office Park - Pool A 1 Various Fairlawn
7-a 6106455c 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
7-b 6106455b 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
7-c 6106455d 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
7-d 6106455e 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx 0000 Xxxx Xxxxxx Xxxxxx Fairlawn
7-e 6106455a 0000 Xxxxxxx Xxxxxxx Building 3500 Embassy Parkway Fairlawn
8 6106168 Xxxxxxx Xxx Xxxxxxxxxx 0 0000 Xxxx Xxxxxxxxx Xxxxxx
11 6106456 Embassy Office Park - Pool B 1 Various Various
11-a 6106456c 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
11-b 6106456d 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
11-c 6106456a 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
11-d 6106456b 0000 Xxxxxxx Xxxxxxx Building 0000 Xxxxxxx Xxxxxxx Fairlawn
11-e 6106456e 0000 Xxxxx Xxxx Xxxxxxxx 0000 Xxxxx Xxxx Xxxxx
13 6106567 Tuscany Plaza 1 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx Village
15 6106208 Xxxxx Xxxx Xxxxxxxx Xxxx 0 0000-0000 Xxxxx Xxxxxxxx Drive and 0000-0000
Xxxxx Xxxxxxxxx Xxxxx Xxxxx Deer
22 6106566 Los Coches Village 0 XXX Xxxxxx Xxxxx Xx Xx & Xxxxxx Xx Los Coches Carlsbad
26 6106280 Xxxxxxx Crossings 1 10057-10137 Adamo Drive Brandon
32 6106438 The Coliseum Center 1 3730-3740 Xxxxxxxx Boulevard Los Angeles
36 6106490 Xxxxxx'x Xxxxxxxx Xxxxxxxxxx 0 0 Xxxxxxx Xxxx Xxxxxxxxxx
39 6106424 Xxxxxxx Xxxxx 0 0000 Xxxxxxx Xxx Massillon
42 6106232 00xx Xxxxxx Xxxxx 0 0000 00xx Xxxxxx Xxxxxxxxx Fargo
47 6106440 City Center, Oakland 1 1200 Clay Street Oakland
50 6106482 Woodlake Center 1 000 Xxxxxxxx Xxxxx Chesapeake
52 6106496 000 X Xxxxxxx 0 000 X Xxxxxxx Xxxxxx Xxxx Xxxx
55 6106505 XxXxxxxx Highlands 2 0000 XxXxxxxx Xxxxxxxxx Xxxxxx
57 6106433 Villa Monterey Apartments 2 7400 East Golf Links Road Tucson
58 6106404 Bellevue Plaza 1 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx
63 6106470 Qwest Data Center 1 000 Xxxxx Xxxxxx Xxxxx Xxxxx
65 6106439 Bellflower Shopping Xxxxxx 0 0000 Xxxxxxxxx Xxx; 14301-14379 Xxxxx Ave Bellflower
71 6106478 Micron Building 1 0000 Xxxxxx Xxxxxx Xxxxxxxxxx
76 6106560 Xxxxxxxx Xxxxxx 0 000-00 Xxxx Xxxxxx Xxxx Xxxxxxxx
00 6106497 Cedar Hills Manor 2 600 North Humboldt Avenue Willows
85 6106436 Xxxxx Creek Apartments 2 1805 Xxxxx Drive Mesquite
89 6106367 Lindale Crossing 1 0000-0000 0xx Xxxxxx Xxxx Xxxxx Xxxxxx
105 6106426 McMinnville Market Center 1 000-000 XX Xxxx Xxxxx XxXxxxxxxxx
106 6106253 Newport Square Apartments 2 4562-4587, 22563-22935 Newport Lane Warrensville Heights
113 6106425 Meridian at Sugarloaf 1 2736 Meadow Church Road Duluth
115 6106432 La Tijera Shopping Center 1 6907-6915 & 0000 Xx Xxxxxx Xxxx. Xxx Xxxxxxx
119 6106469 Xxxxxxxxxxx Xxxxx 0 000 Xxxxxxxx Xxxxxx Xxxxxxxxxxx
121 6105998 Xxxxx Xxxxxx Xxxxxxxxxx 0 0000 Xxxx Xxxxx Xxxxxx College Park
130 6106414 Xxxxxxxxx Xxxx Xxxxxxxxxx 0 0000 Xxxxxxx Xxxxx Xxxx Xxxx
149 6106498 Ennis Crossroads Shopping Center 1 000 Xxxxx Xxxxxxxxxx Xxxxxxx 45 Xxxxx
159 6106493 University Square 2 000 X. 00xx Xxxxxx & 0000 Xxxxxx Xxxxxx Xxxxxxx
160 6106429 Walgreens Ohio Portfolio 1 Various Various
160-a 6106429a Walgreens Akron 000 X. Xxxxxx Xxxxxx Akron
160-b 6106429b Walgreens Cleveland 00000 Xxxxxx Xxxxxx Xxxxxxxxx
X&X
CUT-OFF MONTHLY IO MONTHLY
ORIGINAL DATE DEBT DEBT MORTGAGE
ID STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE
----- ----- -------- ----------- ----------- ----------- ----------- ---------
0 XX 00000 156,500,000 156,500,000 896,707 738,163 5.58250%
2 XX 00000 155,000,000 155,000,000 893,491 738,291 5.63750%
3 XX 00000 90,500,000 90,500,000 521,541 430,875 5.63500%
7 OH 44333 36,350,000 36,350,000 214,676 179,975 5.86000%
7-a OH 44333 13,050,000 13,050,000
7-b XX 00000 9,000,000 9,000,000
0-x XX 00000 5,950,000 5,950,000
7-d XX 00000 4,775,000 4,775,000
0-x XX 00000 3,575,000 3,575,000
8 LA 70056 33,000,000 32,934,213 189,654 NAP 5.61000%
11 OH Various 28,650,000 28,650,000 169,201 141,851 5.86000%
11-a OH 44333 10,250,000 10,250,000
00-x XX 00000 6,125,000 6,125,000
00-x XX 00000 5,475,000 5,475,000
11-d XX 00000 3,925,000 3,925,000
00-x XX 00000 2,875,000 2,875,000
13 CO 80111 27,000,000 27,000,000 160,190 134,651 5.90250%
00 XX 00000 24,000,000 24,000,000 132,083 105,850 5.22000%
00 XX 00000 18,800,000 18,800,000 109,473 91,017 5.73000%
00 XX 00000 17,500,000 17,463,107 97,722 NAP 5.35000%
00 XX 00000 15,300,000 15,300,000 88,801 NAP 5.70000%
36 CT 06457 13,925,000 13,925,000 80,380 66,474 5.65000%
39 OH 44646 13,000,000 13,000,000 74,221 60,960 5.55000%
42 ND 58103 12,654,000 12,654,000 78,407 NAP 6.31000%
00 XX 00000 11,350,000 11,350,000 66,163 55,045 5.74000%
50 VA 23320 9,500,000 9,500,000 59,485 NAP 6.41000%
00 XX 00000 9,400,000 9,400,000 56,418 NAP 6.01000%
00 XX 00000 9,200,000 9,200,000 53,630 44,618 5.74000%
00 XX 00000 9,100,000 9,074,100 52,932 NAP 5.72000%
00 XX 00000 9,000,000 8,974,326 52,293 NAP 5.71000%
00 XX 00000 8,700,000 8,684,680 53,116 NAP 6.17000%
00 XX 00000 8,600,000 8,575,859 50,351 NAP 5.78000%
00 XX 00000 8,000,000 8,000,000 46,381 38,460 5.69000%
00 XX 00000 7,800,000 7,800,000 45,172 37,433 5.68000%
00 XX 00000 7,350,000 7,343,333 42,427 NAP 5.65000%
00 XX 00000 7,300,000 7,279,791 43,019 NAP 5.84000%
89 IA 52402 7,000,000 7,000,000 39,877 32,706 5.53000%
000 XX 00000 6,170,000 6,170,000 NAP 27,473 5.27000%
000 XX 00000 6,100,000 6,087,839 35,057 NAP 5.61000%
000 XX 00000 5,500,000 5,500,000 32,763 27,603 5.94000%
000 XX 00000 5,500,000 5,483,985 31,644 NAP 5.62000%
000 XX 00000 5,000,000 5,000,000 29,370 24,545 5.81000%
000 XX 00000 5,000,000 4,984,870 28,233 NAP 5.45000%
000 XX 00000 4,200,000 4,181,384 28,962 NAP 5.53000%
000 XX 00000 3,420,000 3,420,000 20,769 17,684 6.12000%
000 XX 00000 3,000,000 3,000,000 17,794 14,955 5.90000%
160 OH Various 3,000,000 2,994,148 17,431 NAP 5.71000%
160-a OH 44303 1,539,474 1,536,471
160-b OH 44111 1,460,526 1,457,677
ORIGINAL TERM TO STATED REMAINING ORIGINAL
ARD LOAN MATURITY DATE MATURITY OR ARD TERM TO MATURITY OR AMORTIZATION TERM
ID INTEREST ACCRUAL BASIS (Y/N) OR ARD (MOS.) ARD (MOS.) (MOS.)
----- ---------------------- -------- ------------- ---------------- ------------------- -----------------
1 Actual/360 No 04/05/16 120 118 360
2 Actual/360 No 06/05/16 120 120 360
3 Actual/360 No 03/05/16 120 117 360
7 Actual/360 No 04/05/16 120 118 360
7-a
7-b
7-c
7-d
7-e
8 Actual/360 No 04/05/16 120 118 360
11 Actual/360 No 04/05/16 120 118 360
11-a
11-b
11-c
11-d
11-e
13 Actual/360 No 05/05/11 60 59 360
15 Actual/360 No 12/05/15 120 114 360
22 Actual/360 No 05/01/16 120 119 360
26 Actual/360 No 04/05/16 120 118 360
32 Actual/360 Yes 06/05/16 120 120 360
36 Actual/360 No 05/05/16 120 119 360
39 Actual/360 No 05/05/16 120 119 360
42 Actual/360 Yes 06/05/16 120 120 360
47 Actual/360 No 04/05/16 120 118 360
50 Actual/360 No 06/05/16 120 120 360
52 Actual/360 No 06/05/16 120 120 360
55 Actual/360 No 05/05/16 120 119 360
57 Actual/360 No 03/05/16 120 117 360
58 Actual/360 No 03/05/16 120 117 360
63 Actual/360 No 04/05/16 120 118 360
65 Actual/360 Yes 03/05/16 120 117 360
71 Actual/360 No 04/05/16 120 118 360
76 Actual/360 No 05/05/16 120 119 360
84 Actual/360 No 05/01/16 120 119 360
85 Actual/360 No 03/01/16 120 117 360
89 Actual/360 No 03/05/16 120 117 360
105 Actual/360 Yes 03/05/16 120 117 0
106 Actual/360 No 04/05/16 120 118 360
113 Actual/360 Yes 03/05/11 60 57 360
115 Actual/360 Yes 03/05/16 120 117 360
119 Actual/360 No 04/05/16 120 118 360
121 Actual/360 No 03/05/16 120 117 360
130 Actual/360 No 04/05/16 120 118 240
149 Actual/360 No 05/05/16 120 119 360
159 Actual/360 No 05/05/16 120 119 360
160 Actual/360 Yes 04/05/16 120 118 360
160-a
160-b
REMAINING
AMORTIZATION CROSSED WITH OTHER
ID TERM (MOS.) LOANS CROSSED LOAN ID PREPAYMENT PROVISIONS (# OF PAYMENTS) OWNERSHIP INTEREST
----- ------------ ------------------ --------------- ------------------------------------- ------------------
1 360 LO(35)/GRTR1% or YM(84)/Open(1) Fee
2 360 LO(48)/GRTR1% or YM(69)/Open(3) Leasehold
3 360 LO(28)/Defeasance(88)/Open(4) Fee
7 360 LO(27)/Defeasance(89)/Open(4) Fee
7-a Fee
7-b Fee
7-c Fee
7-d Fee
7-e Fee
8 358 LO(27)/Defeasance(89)/Open(4) Fee
11 360 LO(27)/Defeasance(89)/Open(4) Various
11-a Fee
11-b Fee
11-c Fee
11-d Fee
11-e Leasehold
13 360 LO(23)/GRTR1% or YM(32)/Open(5) Fee
15 360 LO(31)/Defeasance(85)/Open(4) Fee
22 360 LO(26)/Defeasance(90)/Open(4) Fee
26 358 LO(27)/Defeasance(89)/Open(4) Fee
32 360 LO(25)/Defeasance(90)/Open(5) Fee
36 360 LO(26)/Defeasance(90)/Open(4) Fee
39 360 LO(26)/Defeasance(92)/Open(2) Fee
42 360 LO(25)/Defeasance(93)/Open(2) Fee
47 360 LO(27)/Defeasance(89)/Open(4) Fee
50 360 LO(49)/GRTR1% or YM(67)/Open(4) Fee
52 360 LO(25)/Defeasance(91)/Open(4) Fee
55 360 LO(26)/Defeasance(90)/Open(4) Fee
57 357 LO(28)/Defeasance(88)/Open(4) Fee
58 357 LO(28)/Defeasance(88)/Open(4) Fee
63 358 LO(27)/GRTR1% or YM(89)/Open(4) Fee
65 357 LO(28)/Defeasance(87)/Open(5) Fee
71 360 LO(27)/Defeasance(91)/Open(2) Fee
76 360 LO(26)/Defeasance(92)/Open(2) Fee
84 359 LO(26)/Defeasance(90)/Open(4) Fee
85 357 LO(28)/Defeasance(85)/Open(7) Fee
89 360 LO(28)/Defeasance(88)/Open(4) Fee
105 0 LO(28)/Defeasance(88)/Open(4) Leasehold
106 358 LO(27)/Defeasance(89)/Open(4) Fee
113 360 LO(28)/GRTR1% or YM(28)/Open(4) Fee
115 357 LO(28)/Defeasance(87)/Open(5) Fee
119 360 LO(27)/Defeasance(89)/Open(4) Fee
121 357 LO(28)/Defeasance(88)/Open(4) Fee
130 238 LO(27)/Defeasance(89)/Open(4) Fee
149 360 LO(23)/GRTR1% or YM(93)/Open(4) Fee
159 360 LO(26)/Defeasance(92)/Open(2) Fee
160 358 LO(27)/Defeasance(89)/Open(4) Fee
160-a Fee
160-b Fee
ADMINISTRATIVE FEE GRACE PERIOD
ID RATE DUE DATE (PRIOR TO LATE FEES) LETTER OF CREDIT
----- ------------------ -------- -------------------- ------------------------
1 0.02175% 5th 0
2 0.02175% 5th 0
3 0.03175% 5th 0
7 0.07175% 5th 0
7-a
7-b
7-c
7-d
7-e
8 0.05175% 5th 0 Yes ($3,009,800)
11 0.07175% 5th 0
11-a
11-b
11-c
11-d
11-e
13 0.02175% 5th 0
15 0.02175% 5th 0
22 0.02175% 1st 5
26 0.02175% 5th 0
32 0.02175% 5th 0
36 0.02175% 5th 0
39 0.07175% 5th 0
42 0.02175% 5th 0 Yes ($1,000,000)
47 0.05175% 5th 0
50 0.07175% 5th 0
52 0.02175% 5th 0
55 0.04175% 5th 0
57 0.02175% 5th 0
58 0.07175% 5th 0
63 0.02175% 5th 0
65 0.02175% 5th 0
71 0.02175% 5th 0
76 0.02175% 5th 0
84 0.02175% 1st 5
85 0.02175% 1st 5
89 0.02175% 5th 0
105 0.02175% 5th 0
106 0.07175% 5th 0
113 0.02175% 5th 0
115 0.02175% 5th 0
119 0.02175% 5th 0
121 0.07175% 5th 0
130 0.02175% 5th 0
149 0.02175% 5th 0 Yes (2 totaling $50,000)
159 0.07175% 5th 0
160 0.06175% 5th 0
160-a
160-b
SELLER
LOAN
ID NUMBER LETTER OF CREDIT DESCRIPTION
----- -------- ----------------------------------------------------------------------------------------------------
1 6106485
2 6106530
3 6106457
7 6106455
7-a 6106455c
7-b 6106455b
7-c 6106455d
7-d 6106455e
7-e 6106455a
8 6106168 Flood Insurance Requirement ($2,000,000 LOC), Rent Loss Insurance Requirement ($1,009,800 LOC)
11 6106456
11-a 6106456c
11-b 6106456d
11-c 6106456a
11-d 6106456b
11-e 6106456e
13 6106567
15 6106208
22 6106566
26 6106280
32 6106438
36 6106490
39 6106424
42 6106232 Corporate Technologies, LLC and Multiband Tenancy LOC ($1,000,000)
47 6106440
50 6106482
52 6106496
55 6106505
57 6106433
58 6106404
63 6106470
65 6106439
71 6106478
76 6106560
84 6106497
85 6106436
89 6106367
105 6106426
106 6106253
113 6106425
115 6106432
119 6106469
121 6105998
130 6106414
149 6106498 Upfront TI/LC and Replacement Reserves
159 6106493
160 6106429
160-a 6106429a
160-b 6106429b
SELLER
LOAN
ID NUMBER LOAN SPONSOR
----- -------- ------------------------------------------------------------------------------------------------------------
1 6106485 PREIT Associates LP
2 6106530 Xxxx Xxxxx, Xxxx Xxxxx XxXxxxx, Xxxx X. Xxxxx, Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxxxx X. Xxxxx
3 6106457 Xxxxxx X. Xxxxx
7 6106455 Xxxx X. Xxxxxxx
7-a 6106455c
7-b 6106455b
7-c 6106455d
7-d 6106455e
7-e 6106455a
8 6106168 Xxxxxxxxx X. Xxxxx
11 6106456 Xxxx X. Xxxxxxx
11-a 6106456c
11-b 6106456d
11-c 6106456a
11-d 6106456b
11-e 6106456e
13 6106567 Xxxx Real Estate Income and Growth Partners, LLC
Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X.
15 6106208 Xxxxxxx, Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx
22 6106566 Xxxxx X. Xxxxx & Related Family Trusts
26 6106280 Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx
32 6106438 Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx
36 6106490 Xxxxxxx X. Xxxxxxx
39 6106424 Xxxxxxxx X. Xxxxx
42 6106232 Xxxxxx X. Xxxxxx
47 6106440 Xxxx Xxxxxxx
50 6106482 Xxxx X. Xxxxxxx
52 6106496 Xxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
55 6106505 Xxx Xxxxxx
57 6106433 Family Housing Resources, Inc.
58 6106404 X.X. Xxxxxxxxxxxx, XX; Xxxxx X. Xxxxx and W. Xxxxx Xxxxxxxxxxx
63 6106470 Xxxxxx Xxx and Xxxxxxx Xxx
65 6106439 Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx
71 6106478 Xxxxx XxXxxxxxx, Xxxxxxx Xxxxx
76 6106560 Xxxx X. Xxxxx
84 6106497 Xxxxxx X. Xxxxxxxx
85 6106436 C. Xxxxxx Xxxxxxxxx
89 6106367 Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx
105 6106426 Xxxxxx Xxxxxxxx
106 6106253 Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx
113 6106425 Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxxx
115 6106432 Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx
119 6106469 Xxxxxx X. Xxxxx, Xx.
121 6105998 Xxxxxx Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxxx
130 6106414 Xxxxxx Xxxxxxxxx
149 6106498 Xxxxx X. Xxxxxxx
159 6106493 Xxxxxxx X. Xxxx
160 6106429 Xxxxxxxx X. Xxxxx
160-a 6106429a
160-b 6106429b
SELLER
LOAN INITIAL MASTER SERVICING
ID NUMBER MASTER SERVICER FEE RATE
----- -------- ------------------- ---------------------
1 6106485 PAR 0.02050%
2 6106530 PAR 0.02050%
3 6106457 PAR 0.03050%
7 6106455 PAR 0.07050%
7-a 6106455c PAR 0.07050%
7-b 6106455b PAR 0.07050%
7-c 6106455d PAR 0.07050%
7-d 6106455e PAR 0.07050%
7-e 6106455a PAR 0.07050%
8 6106168 PAR 0.05050%
11 6106456 PAR 0.07050%
11-a 6106456c PAR 0.07050%
11-b 6106456d PAR 0.07050%
11-c 6106456a PAR 0.07050%
11-d 6106456b PAR 0.07050%
11-e 6106456e PAR 0.07050%
13 6106567 PAR 0.02050%
15 6106208 PAR 0.02050%
22 6106566 PAR 0.02050%
26 6106280 PAR 0.02050%
32 6106438 PAR 0.02050%
36 6106490 PAR 0.02050%
39 6106424 PAR 0.07050%
42 6106232 PAR 0.02050%
47 6106440 PAR 0.05050%
50 6106482 PAR 0.07050%
52 6106496 PAR 0.02050%
55 6106505 PAR 0.04050%
57 6106433 PAR 0.02050%
58 6106404 PAR 0.07050%
63 6106470 PAR 0.02050%
65 6106439 PAR 0.02050%
71 6106478 PAR 0.02050%
76 6106560 PAR 0.02050%
84 6106497 PAR 0.02050%
85 6106436 PAR 0.02050%
89 6106367 PAR 0.02050%
105 6106426 PAR 0.02050%
106 6106253 PAR 0.07050%
113 6106425 PAR 0.02050%
115 6106432 PAR 0.02050%
119 6106469 PAR 0.02050%
121 6105998 PAR 0.07050%
130 6106414 PAR 0.02050%
149 6106498 PAR 0.02050%
159 6106493 PAR 0.07050%
160 6106429 PAR 0.06050%
160-a 6106429a PAR 0.06050%
160-b 6106429b PAR 0.06050%
SCHEDULE I-B
SCHEDULE OF BSCMI POOLED MORTGAGE LOANS
S-I-B-1
SELLER
LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS CITY
----------------------------------------------------------------------------------------------------------------------------------
6 45441 Tower at Erieview 1 0000 Xxxx 0xx Xxxxxx Xxxxxxxxx
10 00000 Xxxxx Xxxxxxxx Xxxxxx 1 5370 Stone Mountain Highway Stone Mountain
17 46838 Ardmore West Shopping Center 1 38 W, 195 W and 000 X. Xxxxxxxxx Xxxxxx Ardmore
18 45718 InTown Suites Portfolio 1 Xxxxxxx Xxxxxxx
00-x 00000 Xxxxxxxx Xxxxx 000 X. Xxxxxxxxxxxx Xxxx Xxxxxxxx Beach
18-b 45718 Fairfield 0000 Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx
18-c 45718 Jonesboro 0000 Xxxx Xxxx Xxxxxxxxx
18-d 00000 Xxxxxx Xxxxxxx 0000 Xxxxxx Xxxxxxx Xxxxxxxx
00-x 00000 Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx Xxxxxxxxx
19 46108 The Gateway Shopping Center 0 X-000 xx X.X. Xxxxx 0 Xxxxx Xxxxxxxxxx
20 46408 Philadelphia Airport Parking 1 One Xxxxx Way Xxxxxx
24 46114 Reserve at Woodbridge 2 15000 West Airport Sugar Land
29 45194 00-00 0xx Xxxxxx 0 00-00 0xx Xxxxxx Xxx Xxxx
30 00000 Xxxxxxxxxx Xxxxxx 1 0000 Xxxxxxxx Xxxxxx National City
31 46046 Bed, Bath and Beyond Center 1 2141 Central Park Avenue Yonkers
34 45801 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxx 0 000 Xxxxx Xxxxxxx 000 Xxxxxx Xxxxx
35 45879 XxXxxxx Town Center 1 0000-0000 Xxxxx Xxxxxxxx Xxxx McHenry
44 45479 0 Xxxxxxxx Xxxxxx 1 0 Xxxxxxxx Xxxxxx Xxxxxxxxxxx
45 00000 Xxxxxxxxx Xxxxxxxxx Marketplace 1 4827& 0000 X Xxxxxxxxx Xxx Xxxxxx
00 00000 Magnolia Vineland 1 0000 Xxxxxxxx Xxxxxx North Hollywood
67 46472 Best Western Miramar 1 9310 Kearny Mesa Road San Diego
68 43301 Highland Ranch 1 0000-0000 Xxxxx Xxxxxxxx Highlands Ranch
80 45643 Murrietta Center & Bolsa Medical 1 Various Various
80-a 45643 Xxxxxxxx Xxxx Xxxxxx Xxxx 00000 Xxxxxxxx Hot Springs Road Murrieta
80-b 45643 Bolsa Medical Center 0000-0000 Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx
83 46225 00000 Xxxxx Xxxxx Xxxx 1 15020 Xxxxx Xxxxx Xxxx Xxxxxxxxx
00 00000 Creme de la Creme 1 Various Various
86-a 45274 Creme de la Creme - Xxxxx 0000 Xxxx XxXxxxxxx Xxxxx Xxxxx
86-b 45274 Creme de la Creme - Colleyville 0000 Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx
95 45802 Best Western Porterville 1 350 West Xxxxxxxxxx Avenue Porterville
97 45799 Xxxxxx Xxxxxxx San Diego 1 0000 Xxxxxxxxx Xxxxxx San Diego
98 45800 Days Inn Mission Bay 1 4540 Mission Bay Drive San Diego
99 45798 Days Inn Encinitas 1 000 Xxxxxxxxx Xxxx. Encinitas
102 45886 0000 Xxxxxxxxx Xxxxx 1 6901 Riverport Drive Louisville
104 44222 Northwest Corporate Center 1 4700-4950 Research Drive San Antonio
107 46172 Hannaford Plaza 1 00 Xxxxxxx Xxxx Xxxxxxx
112 46051 Pharrs Village 1 0000 Xxxxxx Xxxxxxx Xxxxxxxxxx
117 43812 Guinea Grove Apartments 2 000 Xxxxxxxxx Xxxxxx Chocolate Hole Xx. 00 Xxxx Xxx Xxxxxxx
000 00000 000 Xxxxxxxx Xxxxxx 1 399 Exterior Street Bronx
126 46013 Xxx Xxxxxxx Xxxxxxxx 0 0000 Xxxxxxx Xxxxx Xxxxxxx Quincy
133 45622 North Ranch Plaza 1 4811-4815, 4831-4841, 0000-0000 X. Xxxxx Xxxx Xxx Xxxxx
134 45314 Food Source Sacramento 1 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx
139 46176 Xxxxxxx Xxx & Xxxxxx Xxxxxxx 0 0000 Xxxxxxxx Boulevard Flowood
143 45600 Staples at Xxx Xxxxx Xxxxxxx 0 000 Xxxxx Xxxxxx Xxxxxxxx
144 45309 0000 Xxxxxxx Xxxxxx 2 1240 Xxxxxxx Avenue Bronx
161 45308 0000 Xxxxxx Xxxxx 2 0000 Xxxxxx Xxxxx Xxxxx Xxxxx
164 46028 Markets at Xxxx Xxxxx 0 0000-0000 Xxxx Xxxxx Parkway Fountain
165 45964 0000 Xxxx Xxxx Xxxx 1 1300 Post Road East Westport
175 00000 Xxxxxxxxxx Xxxxx 1 0-00 Xxxxxxx Xxxxxx Xxxxxxxxxx
181 46390 Castle Arms Apartments 2 3121 Speedway Austin
192 46163 Washington Mutual - Westport 1 000 Xxxx Xxxx Xxxx Xxxxxxxx
X&X MONTHLY IO MONTHLY INTEREST ARD
ORIGINAL CUT-OFF DATE DEBT DEBT MORTGAGE ACCRUAL LOAN MATURITY DATE
ID STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE BASIS (Y/N) OR ARD
----------------------------------------------------------------------------------------------------------------------------------
6 OH 44114 43,500,000 43,500,000 262,625 222,910 6.06500% Actual/360 No 04/01/16
00 XX 00000 30,800,000 30,800,000 181,034 151,351 5.81600% Xxxxxx/000 Xx 00/00/00
00 XX 00000 21,000,000 21,000,000 123,486 103,265 5.82000% Actual/360 No 05/01/16
18 Various Various 21,000,000 20,873,123 132,157 NAP 5.75350% Xxxxxx/000 Xx 00/00/00
00-x XX 00000 6,390,355 6,351,746
00-x XX 00000 4,056,165 4,031,659
00-x XX 00000 3,799,216 3,776,262
18-d GA 30071 3,583,641 3,561,990
00-x XX 00000 3,170,623 3,151,467
19 VT 05401 20,500,000 20,500,000 115,588 94,172 5.43700% Xxxxxx/000 Xx 00/00/00
00 XX 00000 20,350,000 20,350,000 117,725 97,489 5.67000% Actual/360 Yes 03/01/16
00 XX 00000 18,000,000 18,000,000 100,941 81,943 5.38800% Xxxxxx/000 Xx 00/00/00
00 XX 00000 16,500,000 16,500,000 95,338 78,892 5.65900% Actual/360 No 04/01/16
00 XX 00000 16,500,000 16,500,000 97,046 81,164 5.82200% Xxxxxx/000 Xx 00/00/00
00 XX 00000 15,500,000 15,488,056 95,658 NAP 6.27200% Actual/360 No 05/01/16
00 XX 00000 14,250,000 14,224,358 86,115 NAP 6.07400% Xxxxxx/000 Xx 00/00/00
00 XX 00000 14,100,000 14,100,000 81,194 67,047 5.62800% Xxxxxx/000 Xx 00/00/00
00 XX 00000 12,250,000 12,250,000 69,431 56,760 5.48400% Actual/360 No 01/01/16
45 CO 80123 12,025,000 12,025,000 NAP 56,591 5.57000% Actual/360 Yes 03/01/11
00 XX 00000 8,750,000 8,750,000 50,243 41,415 5.60200% Actual/360 No 05/01/16
00 XX 00000 8,500,000 8,485,154 52,093 NAP 6.20600% Xxxxxx/000 Xx 00/00/00
00 XX 00000 8,400,000 8,400,000 48,286 39,830 5.61200% Actual/360 No 05/01/16
80 CA Various 7,500,000 7,500,000 43,103 35,549 5.61000% Xxxxxx/000 Xx 00/00/00
00-x XX 00000 5,600,000 5,600,000
00-x XX 00000 1,900,000 1,900,000
00 XX 00000 7,350,000 7,350,000 43,342 36,304 5.84600% Actual/360 No 04/01/16
86 TX Various 7,228,840 7,197,437 41,422 NAP 5.58300% Actual/360 Xx 00/00/00
00-x XX 00000 3,975,000 3,957,732
00-x XX 00000 3,253,840 3,239,705
00 XX 00000 6,725,000 6,712,953 40,727 NAP 6.09400% Actual/360 No 04/01/13
00 XX 00000 6,675,000 6,663,043 40,424 NAP 6.09400% Actual/360 No 04/01/13
00 XX 00000 6,525,000 6,513,312 39,516 NAP 6.09400% Actual/360 No 04/01/13
00 XX 00000 6,375,000 6,363,580 38,607 NAP 6.09400% Actual/360 No 04/01/13
000 XX 00000 6,250,000 6,250,000 NAP 29,429 5.57300% Actual/360 No 02/01/16
000 XX 00000 6,200,000 6,173,197 35,628 NAP 5.60900% Actual/360 No 02/01/16
000 XX 00000 6,000,000 6,000,000 33,924 27,689 5.46200% Actual/360 No 04/01/16
000 XX 00000 5,660,000 5,643,910 32,940 NAP 5.72500% Xxxxxx/000 Xx 00/00/00
000 XX 00000 5,250,000 5,245,509 31,069 NAP 5.87900% Actual/360 No 05/01/16
000 XX 00000 4,700,000 4,690,876 27,374 NAP 5.73200% Actual/360 No 04/01/16
000 XX 00000 4,400,000 4,391,204 25,251 NAP 5.59700% Actual/360 No 04/01/16
000 XX 00000 4,100,000 4,100,000 25,330 21,762 6.28200% Actual/360 No 05/01/16
000 XX 00000 4,030,000 4,030,000 24,445 20,801 6.10900% Actual/360 No 05/01/16
000 XX 00000 4,000,000 3,983,665 25,545 NAP 5.90700% Actual/360 No 03/01/16
000 XX 00000 3,700,000 3,700,000 20,698 16,775 5.36600% Actual/360 No 02/01/16
000 XX 00000 3,700,000 3,693,891 23,267 NAP 6.45100% Actual/360 No 04/01/11
000 XX 00000 2,850,000 2,845,294 17,922 NAP 6.45100% Actual/360 No 04/01/11
000 XX 00000 2,540,000 2,540,000 15,188 12,823 5.97500% Actual/360 No 04/01/16
000 XX 00000 2,500,000 2,500,000 NAP 11,774 5.57400% Actual/360 No 04/01/16
000 XX 00000 2,225,000 2,213,597 12,966 NAP 5.73700% Actual/360 No 01/01/16
000 XX 00000 2,005,000 2,005,000 11,832 9,915 5.85300% Actual/360 No 04/01/16
000 XX 00000 1,740,000 1,740,000 10,560 8,988 6.11400% Actual/360 No 05/01/16
STATED
ORIGINAL REMAINING
TERM TERM
TO TO ORIGINAL CROSSED
MATURITY MATURITY AMORTIZATION REMAINING WITH CROSSED PREPAYMENT
OR OR TERM AMORTIZATION OTHER LOAN PROVISIONS
ID ARD (MOS.) ARD (MOS.) (MOS.) TERM (MOS.) LOANS ID (# OF PAYMENTS)
--------------------------------------------------------------------------------------------------------------------------
6 120 118 360 360 LO(47)/Defeasance(72)/Open(1)
10 120 118 360 360 LO(26)/Defeasance(93)/Open(1)
17 120 119 360 360 LO(25)/Defeasance(93)/Open(2)
18 120 116 300 296 GRTR1% or YM(28)/Defeasance(88)/Open(4)
18-a
18-b
18-c
18-d
18-e
19 120 117 360 360 LO(27)/Defeasance(90)/Open(3)
20 120 117 360 360 LO(27)/Defeasance(91)/Open(2)
24 120 118 360 360 LO(26)/Defeasance(93)/Open(1)
29 120 118 360 360 LO(26)/Defeasance(92)/Open(2)
30 120 118 360 360 LO(26)/Defeasance(91)/Open(3)
31 120 119 360 359 LO(25)/Defeasance(93)/Open(2)
34 84 82 360 358 LO(26)/Defeasance(57)/Open(1)
35 120 117 360 360 LO(27)/Defeasance(91)/Open(2)
44 120 115 360 360 LO(29)/Defeasance(90)/Open(1)
45 60 57 0 0 LO(27)/Defeasance(29)/Open(4)
61 120 119 360 360 LO(25)/Defeasance(93)/Open(2)
67 84 82 360 358 LO(26)/Defeasance(57)/Open(1)
68 120 119 360 360 LO(25)/Defeasance(93)/Open(2)
80 120 116 360 360 LO(28)/Defeasance(91)/Open(1)
80-a
80-b
83 120 118 360 360 LO(26)/Defeasance(92)/Open(2)
86 120 116 360 356 LO(28)/Defeasance(90)/Open(2)
86-a
86-b
95 84 82 360 358 LO(26)/Defeasance(57)/Open(1)
97 84 82 360 358 LO(26)/Defeasance(57)/Open(1)
98 84 82 360 358 LO(26)/Defeasance(57)/Open(1)
99 84 82 360 358 LO(26)/Defeasance(57)/Open(1)
102 120 116 0 0 LO(28)/Defeasance(91)/Open(1)
104 120 116 360 356 LO(28)/Defeasance(91)/Open(1)
107 120 118 360 360 LO(26)/Flex(89)/Open(5)
112 120 117 360 357 LO(27)/Defeasance(92)/Open(1)
117 120 119 360 359 LO(25)/Defeasance(94)/Open(1)
125 120 118 360 358 LO(26)/Defeasance(93)/Open(1)
126 120 118 360 358 LO(26)/Defeasance(92)/Open(2)
133 120 119 360 360 LO(25)/Defeasance(94)/Open(1)
134 120 119 360 360 LO(25)/Defeasance(94)/Open(1)
139 120 117 300 297 LO(27)/Defeasance(92)/Open(1)
143 120 116 360 360 LO(28)/Defeasance(90)/Open(2)
144 60 58 360 358 LO(26)/GRTR1% or YM(33)/Open(1)
161 60 58 360 358 LO(26)/GRTR1% or YM(33)/Open(1)
164 120 118 360 360 LO(26)/Defeasance(92)/Open(2)
165 120 118 0 0 LO(26)/Defeasance(93)/Open(1)
175 120 115 360 355 LO(29)/Defeasance(90)/Open(1)
181 120 118 360 360 LO(26)/Defeasance(93)/Open(1)
192 120 119 360 360 LO(25)/Defeasance(94)/Open(1)
GRACE LETTER
ADMINISTRATIVE PERIOD LETTER OF
OWNERSHIP FEE DUE (PRIOR TO OF CREDIT
ID INTEREST RATE DATE LATE FEES) CREDIT DESCRIPTION
----------------------------------------------------------------------------
6 Fee 0.07175% 1st 5
10 Fee 0.03175% 1st 5
17 Fee 0.03175% 1st 0
18 Fee 0.03175% 1st 0
18-a Fee
18-b Fee
18-c Fee
18-d Fee
18-e Fee
19 Fee 0.03175% 1st 0
20 Fee 0.03175% 1st 5
24 Fee 0.03175% 1st 0
29 Fee 0.03175% 1st 5
30 Leasehold 0.05175% 1st 5
31 Fee 0.03175% 1st 5
34 Fee 0.03175% 1st 5
35 Fee 0.07175% 1st 5
44 Fee 0.03175% 1st 5
45 Fee 0.03175% 1st 0
61 Fee 0.03175% 1st 5
67 Fee 0.03175% 1st 5
68 Fee 0.03175% 1st 5
80 Fee 0.03175% 1st 5
80-a Fee
80-b Fee
83 Fee 0.03175% 1st 5
86 Fee 0.03175% 1st 5
86-a Fee
86-b Fee
95 Fee 0.03175% 1st 5
97 Fee 0.03175% 1st 5
98 Fee 0.03175% 1st 5
99 Fee 0.03175% 1st 5
102 Fee 0.07175% 1st 5
104 Fee 0.03175% 1st 5
107 Fee 0.03175% 1st 5
112 Fee 0.03175% 1st 5
117 Fee 0.03175% 1st 5
125 Fee 0.03175% 1st 5
126 Fee 0.03175% 1st 5
133 Fee 0.03175% 1st 5
134 Fee 0.03175% 1st 5
139 Fee 0.03175% 1st 5
143 Fee 0.03175% 1st 5
144 Fee 0.03175% 1st 5
161 Fee 0.03175% 1st 5
164 Fee 0.08175% 1st 5
165 Fee 0.08175% 1st 5
175 Fee 0.03175% 1st 5
181 Fee 0.08175% 1st 5
192 Fee 0.03175% 1st 5
MASTER
INITIAL SERVICING
MASTER FEE
ID LOAN SPONSOR SERVICER RATE
---------------------------------------------------------------------------------------------------
6 Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx WFB 0.07050%
10 Xxxx Xxxxxxx and Xxxxxx Xxxxxxx WFB 0.03050%
17 Xxxxx Xxxxxx WFB 0.03050%
18 Lazard Freres Real Estate Investors WFB 0.03050%
18-a WFB 0.03050%
18-b WFB 0.03050%
18-c WFB 0.03050%
18-d WFB 0.03050%
18-e WFB 0.03050%
19 Acadia Realty Trust WFB 0.03050%
20 L&R Investment Co. WFB 0.03050%
00 Xxxxxxx Xxxxxx xxx Xxxxxxx Xxxxx XXX 0.03050%
29 Xxxxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxx WFB 0.03050%
00 Xxxxx Xxxxxxxxxxxx xxx Xxxxxxx XxXxxx XXX 0.05050%
31 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxx, Xxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx WFB 0.03050%
34 Xxxxxx Xxxx and Xxxxxx Xxxxx WFB 0.03050%
35 Xxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxxx WFB 0.07050%
44 Xxxx Xxxxxxxxxxx and Xxxxxx Xxxxxx WFB 0.03050%
45 Xxxx Companies, Inc. WFB 0.03050%
00 Xxxxxx Xxxxx xxx Xxxxxx Xxxxxxx XXX 0.03050%
67 Xxxxxx Xxxx and Xxxxxx Xxxxx WFB 0.03050%
68 Xxxxxx Xxxxx and Xxxxxx Xxxxxxx WFB 0.03050%
80 Xxxxx Xx WFB 0.03050%
80-a WFB 0.03050%
80-b WFB 0.03050%
83 Xxxxxxx Xxxxxxx WFB 0.03050%
86 Kimco Realty Corporation WFB 0.03050%
86-a WFB 0.03050%
86-b WFB 0.03050%
95 Xxxxxx Xxxx and Xxxxxx Xxxxx WFB 0.03050%
97 Xxxxxx Xxxx and Xxxxxx Xxxxx WFB 0.03050%
98 Xxxxxx Xxxx and Xxxxxx Xxxxx WFB 0.03050%
99 Xxxxxx Xxxx and Xxxxxx Xxxxx WFB 0.03050%
102 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxx and Xxxxxxxxx Xxxxx WFB 0.07050%
000 Xxxx Xxxxxxxx XXX 0.03050%
107 Xx. Xxxx Xxxxxxxxxxxxx, Xxxx Xxxxxxxxxxxxxx Xx. and Xxxxxxx Xxxxx WFB 0.03050%
112 Xxxxxxx Xxxxx, Xxxx Xxxxx and Xxxx Xxxxx WFB 0.03050%
117 Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx WFB 0.03050%
125 Xxxxxxx Xxxxx WFB 0.03050%
126 Xxxx Xxxxxxxxx, Xxxxx Xxxxx and Xxxxx Xxxxxxxx WFB 0.03050%
133 Xxxx Xxxx and Xxx Xxxxxxx WFB 0.03050%
134 Xxxxxxx Xxxxxxxxxxxx and Xxxxxx Xxxxxxxxxxxx WFB 0.03050%
139 Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxxx WFB 0.03050%
143 GE Pension Trust and Kimco Realty Corporation WFB 0.03050%
144 Xxxxxxx Xxxxxxxxxxx and Xxxxx Xxxxxx WFB 0.03050%
161 Xxxxxxx Xxxxxxxxxxx and Xxxxx Xxxxxx WFB 0.03050%
164 Xxxxxx Xxxxxx and Xxxxx Xxxxxx WFB 0.08050%
165 Xxxxxx X. Xxxxxx WFB 0.08050%
175 Xxxx XxXxxxx and Xxxx Xxxxxxxx WFB 0.03050%
181 Xxxxxxx X. Xxxxxx WFB 0.08050%
192 Xxxx Xxxxxxxxxxx WFB 0.03050%
SCHEDULE I-C
SCHEDULE OF WFB POOLED MORTGAGE LOANS
S-I-C-1
SELLER
LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS
----------------------------------------------------------------------------------------------------------------------------
4 310904290 Broken Sound Portfolio 1 Various
4-a 310904290A 5900 Broken Sound Plaza 5900 Broken Sound Parkway
4-b 310904290B 6000 Broken Sound Plaza 6000 Broken Sound Parkway
4-c 310904290C Xxxxxx Circle 000 Xxxxx Xxxxxx Xxxxxx
4-d 310904290D Xxxxxxxx Business Center 0000 XX Xxxxxx Xxxxx Xxxxxxx
0-x 310904290E Colonnade Plaza 0000 XX 00xx Xxxxxx
5 310904116 Southdale Office Xxxxxx 0 0000 - 0000 Xxxxxx Avenue South
16 310903982 Gwinnett Regional Distribution Center 1 3312 North Berkeley Lake Road
27 310904050 Xxxxxx Xxxxxxx Xxxxx 0 0000 Xxxx Xxxxx Xxxxxxx 114
28 310904081 Baylor Surgicare Grapevine 1 0000 Xxxx Xxxxx Xxx 114
38 310903931 Hilton Xxxxxx Xxx Xxxxxxxxxxx 0 00 Xxxxxxxxxxx Xxxx.
41 310903232 Data Point 1 8550, 8410, 8400 Datapoint Dr.
43 310903865 Mattress Discounters 1 9821 & 0000 Xxxxxxx Xxxxx
46 310903979 Coyote Creek Xxxxxx Xxxx Xxxx 0 0000 Xxxxxx Xxxx
54 310904177 MacArthur Xxxxxxxx Xxxx 0 0000-0000 Xxxx XxxXxxxxx Xxxxxxxxx
56 310904022 0000 Xxxxxxxx Xxxxx 1 0000 Xxxxxxxx Xxxxx
62 310903862 Xxx Xxx Xxxx Xxxxx 0 0000-0000 Xxxxxxxxxxxxxx Turnpike
64 310904117 Hampton Inn & Suites Bemidji 1 1015 Xxxx Xxxxxx Drive S
66 310904130 Hawthorn Suites Franklin 1 835 Upper Union Street
69 310903805 La Plata Shopping Center 0 0000-0000 Xxxxx Highway
72 310903844 Staybridge Suites - Cincinnati North 1 8955 Lakota Drive West
73 310904155 Best Western Xxxxxxx Xxxxx 0 00000 Xxxxxxx Xxxxx Xxxx
75 310903938 Xxxxxx Xxxxxxx 2 0000-0000 0xx Xxxxxx
77 310903978 Saratoga Apartments 2 2240 & 0000 X. Xxxxxxxxxx Xxxxx
78 310904057 Xxxxxx Industrial 1 0000 Xxxxx Xxxxxx
82 310904154 Xxxxxxxxxxxx Xxxxx Xxxxxx 0 0000 Xxxxxxxxxxxx Xxxxxxxxx
87 310903956 Xxxxxx Road Project 1 3500-3520 Xxxxxx Road
88 310904120 Holiday Inn Express - Chesapeake, VA 1 2436 Gum Road
91 310904051 Camelot/Avalon MHP 1 0000 Xxx Xxx Xxxxx and 2101 E, 2101 Xxxxxxxxx Xxxx
00 000000000 Xxxxxxxx Xxxxx - Xxxxxxx 1 00000 000xx Xxxxxx
103 310903754 Fairfield Inn & Suites, (Bethlehem, PA) 1 2140 Motel Drive
109 310903892 Surprise Self Storage 1 00000 X. Xxxxx Xx
114 310903905 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx 0 000-000 X. Xxxxxxxx Xxxx.
123 310903923 000 Xxxxx Xxxxx 0 000 Xxxxx Xxxxx
124 310903383 Country Inn & Suites by Xxxxxxx - Tucson 1 0000 Xxxxx Xxxxxx Xx.
137 310903904 000 Xxxxx Xxxxx 0 000 Xxxxx Xxxxx
138 410903897 Rite Aid - Hercules 1 0000 Xxxxxxxx Xxxxxx
140 410904122 South Pointe Crossing 1 4800 S. Hwy 41
141 620903610 Canon Plaza 1 000X - 000X Xxxxx 00xx Xxxxxx & 0000 Xxxxxxx Xxxxx
147 410904060 PetsMart Memphis 1 0000 Xxxxxxxxxx Xxxx
148 410903981 Xxxxxxx Xxxxxx 0 0000 Xxxxxxx Xxxxxx and 1220 & 0000 XX Xxxxxxx Xxx
152 410903832 Xxx Xxxxxxxx Xxxxxx 0 000-000 X. Xxxxxxxx
153 310904134 Comfort Inn North Dartmouth 1 171 Xxxxxx Corner Road
155 410903936 B & H Self Storage 1 670 East Pine Log Road
157 410904058 PetSmart - Xxxxxxxxx 0 0000 Xxxxxx Xxxxxxx
163 410903914 Downtown Self Storage 1 0000 Xxxx Xxxxx Xxxxxx
166 410904014 Xxxxxxxx Xxxxxxxxxx Xxxxxxxxx 0 0000 Xxxx Road & 0000 Xxxxx Xxxxxx
167 410903935 Xxxxxxx Xxxxx Xxxxxxxxx 0 000 Xxxxxxx Xxxxxxx
168 410903949 Sam's Town Marketplace Xxxxx 0 0000 Xxxxx Xxxx
170 410903785 Savage Retail 1 0000 Xxxx Xxxxx
171 410903548 Xxxx Xxxxx Xxxxxx 0 0000-0000 X. 0xx Xx. and 665-681 Redondo Ave.
172 410903525 American Self Storage - Midvale 1 0000 Xxxxx 000 Xxxx
174 620903989 Bridge Xxxxxx Xxxxxx 0 000, 000, 000 Xxxxxx Xxxxxx
176 410904048 Xxxxxxxxxxx Xxxx Xxxxxx 0 00000 Xxxxxxxxxxx Xxxx
180 410903944 Mission Xxxxx Xxxxxx 0 0000 Xxxx Xxxxxxxxxx 83
182 410903934 Crackerneck Plaza II 1 19301 and 00000 Xxxx XX Xxxxxxx 40
185 410903920 1777 Conestoga 1 0000 Xxxxxxxxx Xxxxxx
187 410903921 Xxxxx Xxxxxxxxx Xxxxxxxx Xxxx 0 0000 Xxxxx 0xx Xxxxxx
188 410904106 Xxxxxxxxxx Xxxxx 0 0000 Xxxxxxxxxx Xxxxx
191 410903992 0000 Xxxxxxx 1 0000 Xxxxxxx Xx.
197 410903980 0000 Xxxxxx Xxxxxxxxxx 0 0000 Xxxxxx Xxxx
198 410904123 Xxxxxxxx Xxxxxx Xxxxxxxx 0 000 Xxxxxx Xxx.
199 410903457 Xxxxxxx Xxxxx - Xxx Xxxxx 0 3310 & 0000 Xxxxx Xxxxxxxx Xxxx
203 410903955 9-D EZ Storage 1 1404 Route 9-D
204 410903990 0000 00xx Xxxxxx XX 1 0000 00xx Xxxxxx XX
205 410904046 Xxxxxxxxxxxx Xxxxxx Xxxxxx 0 00000 Xxx Xxxxxxxx Pike
206 410903894 The Preserve at Xxxxxxx Xxxx - Xxxxxxxxx 0 and 5 2 1530-1566 Blackbird Lane, 0000-0000 Xxxx Xxxxx
207 410903948 Xxxxxx Xxxxx 0 0000 Xxxxxx Xxxxx
208 410903995 000 00xx Xxxxxx Xxxxxx Xxxxxxxx 0 000 00xx Xxxxxx
209 410903762 000 Xxxxx Xxxxxx 0 000 X. Xxxxxx Xx.
211 410903788 00000 X. Xxxxxxxx Xxxxxxxxx 1 13633 Xxxxxxxx Boulevard
212 410903932 Xxxxxxx Xxxxxxxx - Xxxxxxxxx 1 00000 Xxxx Xxx Xxxxxx
213 410904047 Vital Way Retail Center 1 00-00 Xxxxx Xxx
XXX-XXX X&X MONTHLY IO MONTHLY INTEREST ARD MATURITY
ORIGINAL DATE DEBT DEBT MORTGAGE ACCRUAL LOAN DATE
ID CITY STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE BASIS (Y/N) OR ARD
---------------------------------------------------------------------------------------------------------------------------------
4 Various FL Various 47,000,000 47,000,000 NAP 243,823 6.14000% Actual/360 No 6/1/2016
4-a Xxxx Xxxxx XX 00000 12,560,000 12,560,000
4-b Xxxx Xxxxx XX 00000 12,165,000 12,165,000
4-c Xxxx Xxxxx XX 00000 10,000,000 10,000,000
4-d Xxxx Xxxxx XX 00000 7,550,000 7,550,000
4-e Xxxxxxxxx Xxxxx XX 00000 4,725,000 4,725,000
5 Xxxxx XX 00000 44,500,000 44,500,000 272,116 232,546 6.18500% Actual/360 No 5/1/2016
16 Xxxxxx XX 00000 23,000,000 23,000,000 134,953 112,711 5.80000% Actual/360 Yes 4/5/2013
27 Xxxxxxxxx XX 00000 10,745,000 10,745,000 66,229 56,832 6.26000% Actual/360 Yes 6/1/2016
28 Xxxxxxxxx XX 00000 5,935,000 5,935,000 36,775 31,642 6.31000% Actual/360 Yes 6/1/2016
00 Xxxxxxxxxxx XX 00000 13,500,000 13,500,000 85,380 68,209 5.98000% Actual/360 Yes 4/1/2016
41 Xxx Xxxxxxx XX 00000 12,750,000 12,750,000 73,678 60,973 5.66000% Actual/360 No 4/1/2016
00 Xxxxx Xxxxxxxx XX 00000 12,300,000 12,300,000 71,584 59,496 5.72500% Actual/360 No 4/1/2016
46 Xxx Xxxx XX 00000 11,450,000 11,450,000 69,831 59,593 6.16000% Actual/360 No 5/1/2011
54 Xxxxx Xxx XX 00000 9,250,000 9,250,000 54,924 NAP 5.91000% Actual/360 No 6/1/2016
56 Xxxx Xxxxxxxxxx XX 00000 9,200,000 9,192,274 54,863 NAP 5.95000% Actual/360 No 5/1/2016
62 Xxxxxxxx XX 00000 8,700,000 8,700,000 51,158 42,781 5.82000% Actual/360 Yes 4/1/2016
64 Bemidji MN 56601 8,600,000 8,584,593 60,655 NAP 6.11000% Actual/360 No 5/1/2016
66 Xxxxxxxx XX 00000 8,500,000 8,500,000 55,982 45,963 6.40000% Actual/360 Yes 5/1/2016
00 Xx Xxxxx XX 00000 8,175,000 8,152,211 48,019 NAP 5.81000% Actual/360 No 3/1/2016
00 Xxxx Xxxxxxx XX 00000 8,000,000 8,000,000 54,819 NAP 6.66000% Actual/360 No 6/1/2016
73 Xxxxxxxxxx XX 00000 8,000,000 7,990,818 54,167 NAP 6.53000% Actual/360 No 5/1/2016
75 Xxxxxxx XX 00000 7,925,000 7,917,610 45,196 NAP 5.54000% Actual/360 No 5/1/2016
77 Xxxx XX 00000 7,755,000 7,733,131 45,305 NAP 5.76000% Actual/360 No 3/1/2016
78 Xxx Xxxx XX 00000 7,660,000 7,653,751 46,221 NAP 6.06000% Actual/360 Yes 5/1/2016
82 Xxxxxxxxxxxx XX 00000 7,500,000 7,500,000 44,006 36,753 5.80000% Actual/360 No 6/1/2016
87 Xxxxx Xxxxx XX 00000 7,110,000 7,110,000 41,041 33,941 5.65000% Actual/360 No 4/1/2016
88 Xxxxxxxxxx XX 00000 7,050,000 7,050,000 43,408 37,229 6.25000% Actual/360 No 5/1/2016
00 Xxxxx Xxxxxxx XX 00000 7,000,000 6,994,365 42,465 NAP 6.11000% Actual/360 Xx 0/0/0000
00 Xxxxxxx XX 00000 7,000,000 6,971,122 44,461 NAP 5.85000% Actual/360 No 3/1/2016
000 Xxxxxxxxx XX 00000 6,225,000 6,225,000 38,490 30,242 5.75000% Actual/360 Yes 2/1/2016
000 Xxxxxxxx XX 00000 5,750,000 5,739,829 35,031 NAP 6.15000% Actual/360 No 4/1/2016
000 Xxxxxx XX 00000 5,500,000 5,494,756 31,056 NAP 5.45000% Actual/360 No 5/1/2016
000 Xxxxx Xxxxxx XX 00000 4,800,000 4,800,000 27,829 23,076 5.69000% Actual/360 No 3/1/2016
000 Xxxxxx XX 00000 4,750,000 4,699,789 34,443 NAP 6.15000% Actual/360 No 1/1/2011
000 Xxxxxxxxx XX 00000 4,000,000 3,996,298 22,888 NAP 5.57000% Actual/360 Yes 1/1/2015
000 Xxxxxxxx XX 00000 4,000,000 3,989,105 23,751 NAP 5.91000% Actual/360 Xx 0/0/0000
000 Xxxxx Xxxxx XX 00000 3,940,000 3,940,000 24,733 NAP 6.06000% Actual/360 No 6/1/2016
141 Xxxxx Xxxx XX 00000 3,920,000 3,916,794 23,629 NAP 6.05000% Actual/360 No 5/1/2016
000 Xxxxxxx XX 00000 3,580,000 3,577,172 21,880 NAP 6.18000% Actual/360 No 5/1/2016
000 Xxxxxxxx XX 00000 3,500,000 3,497,323 21,664 NAP 6.30000% Actual/360 No 5/1/2016
000 Xxxxxxxx XX 00000 3,250,000 3,247,324 19,538 NAP 6.02500% Actual/360 No 5/1/2016
000 Xxxxxxxxx XX 00000 3,225,000 3,221,314 21,876 NAP 6.55000% Actual/360 Yes 5/1/2016
000 Xxxxx XX 00000 3,200,000 3,186,490 22,760 NAP 5.91000% Actual/360 No 4/1/2016
000 Xxxxxxxxx XX 00000 3,060,000 3,057,369 18,072 NAP 5.86000% Actual/360 Yes 5/1/2016
000 Xxxxxxxxx XX 00000 2,600,000 2,595,275 15,639 NAP 6.03000% Actual/360 No 4/1/2016
000 Xxxxxxxx XX 00000 2,500,000 2,500,000 14,510 12,040 5.70000% Actual/360 No 4/1/2016
000 Xxxxxxx Xxxxx XX 00000 2,500,000 2,498,161 15,703 NAP 6.44000% Actual/360 No 5/1/2016
000 Xxxxxxx Xxxx XX 00000 2,500,000 2,495,548 15,182 NAP 6.12000% Actual/360 No 4/1/2016
000 Xxxxxx XX 00000 2,500,000 2,489,826 14,876 NAP 5.93000% Actual/360 No 2/1/2016
000 Xxxx Xxxxx XX 00000 2,400,000 2,395,410 14,082 NAP 5.80000% Xxxxxx/000 Xx 0/0/0000
000 Xxxxxxx XX 00000 2,400,000 2,388,841 14,730 NAP 6.22000% Actual/360 No 1/1/2016
000 Xxxxxxxx XX 00000 2,320,000 2,318,047 13,820 NAP 5.94000% Actual/360 No 5/1/2016
000 Xxxxxxxxxx XX 00000 2,200,000 2,200,000 13,718 NAP 6.37000% Actual/360 No 6/1/2016
000 Xxxxxxx XX 00000 2,065,000 2,061,331 12,554 NAP 6.13000% Actual/360 No 4/1/2016
000 Xxxxxxxxxxxx XX 00000 2,000,000 1,998,487 12,432 NAP 6.34000% Actual/360 No 5/1/2016
000 Xxxxxxx XX 00000 1,940,000 1,936,607 11,882 NAP 6.20000% Actual/360 Yes 4/1/2016
000 Xxxxxx XX 00000 1,840,000 1,836,716 11,162 NAP 6.11000% Actual/360 No 4/1/2016
000 Xxxxx Xxxxx XX 00000 1,800,000 1,798,646 11,212 NAP 6.36000% Actual/360 No 5/1/2016
000 Xxxxxxx XX 00000 1,780,000 1,780,000 11,053 9,520 6.33000% Actual/360 No 4/1/2011
000 Xxxxxxxxx XX 00000 1,680,000 1,677,902 10,938 NAP 6.11000% Actual/360 Xx 0/0/0000
000 Xxxxx Xxxxx XX 00000 1,625,000 1,625,000 10,500 NAP 6.03000% Actual/360 No 6/1/2016
000 Xxx Xxxxx XX 00000 1,600,000 1,595,783 9,644 NAP 6.05000% Actual/360 No 3/1/2016
000 Xxxxxxxxxx Xxxxx XX 00000 1,500,000 1,500,000 9,236 7,921 6.25000% Actual/360 No 5/1/2016
000 Xxxxx XX 00000 1,470,000 1,468,860 9,051 NAP 6.25000% Actual/360 No 5/1/2016
000 Xxxxxxxxxxxx XX 00000 1,400,000 1,400,000 8,730 NAP 6.37000% Actual/360 No 6/1/2016
000 Xxxxxx XX 00000 1,400,000 1,398,775 8,206 NAP 5.79000% Actual/360 No 5/1/2016
000 Xxxxxx XX 00000 1,340,000 1,337,635 8,172 NAP 6.16000% Actual/360 No 4/1/2016
000 Xxxxxxx Xxxxx XX 00000 1,225,000 1,224,079 7,630 NAP 6.36000% Actual/360 No 5/1/2016
000 Xxxxxxx XX 00000 1,190,000 1,188,003 7,428 NAP 6.38000% Actual/360 No 4/1/2016
000 Xxxxxxxxx XX 00000 1,000,000 997,346 6,008 NAP 6.02000% Actual/360 No 3/1/2016
000 Xxxxxxxxx XX 00000 940,000 938,844 6,166 NAP 6.19000% Actual/360 No 5/1/2016
213 Silver Spring MD 20904 800,000 800,000 4,988 NAP 6.37000% Actual/360 No 6/1/2016
STATED
ORIGINAL TERM REMAINING TERM ORIGINAL REMAINING CROSSED
TO MATURITY TO MATURITY AMORTIZATION AMORTIZATION WITH OTHER CROSSED
ID OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) TERM (MOS.) LOANS LOAN ID PREPAYMENT PROVISIONS (# OF PAYMENTS)
----------------------------------------------------------------------------------------------------------------------------
4 120 120 0 0 LO(24)/Defeasance(92)/Open(4)
4-a
4-b
4-c
4-d
4-e
5 120 119 360 360 LO(35)/Defeasance(81)/Open(4)
16 84 82 360 360 LO(27)/GRTR1% or YM(55)/Open(2)
27 120 120 360 360 Crossed A Crossed A LO(35)/Defeasance(81)/Open(4)
28 120 120 360 360 Crossed A Crossed A GRTR1% or YM(116)/Open(4)
38 120 118 312 312 LO(35)/Flex(81)/Open(4)
41 120 118 360 360 LO(35)/Defeasance(81)/Open(4)
43 120 118 360 360 LO(26)/Defeasance(90)/Open(4)
46 60 59 360 360 LO(33)/Defeasance(23)/Open(4)
54 120 120 360 360 LO(35)/Defeasance(81)/Open(4)
56 120 119 360 359 LO(35)/Defeasance(83)/Open(2)
62 120 118 360 360 LO(35)/Defeasance(81)/Open(4)
64 120 119 252 251 LO(35)/Defeasance(81)/Open(4)
66 120 119 312 312 LO(35)/Flex(81)/Open(4)
69 120 117 360 357 LO(35)/Defeasance(81)/Open(4)
72 120 120 300 300 LO(35)/Defeasance(81)/Open(4)
73 120 119 300 299 LO(25)/Defeasance(91)/Open(4)
75 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
77 120 117 360 357 LO(35)/Defeasance(81)/Open(4)
78 120 119 360 359 LO(25)/Defeasance(91)/Open(4)
82 120 120 360 360 LO(35)/Defeasance(81)/Open(4)
87 120 118 360 360 LO(35)/Flex(81)/Open(4)
88 120 119 360 360 LO(35)/Defeasance(83)/Open(2)
91 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
92 120 117 300 297 LO(35)/Flex(81)/Open(4)
103 120 116 312 312 LO(35)/Flex(81)/Open(4)
109 120 118 360 358 LO(35)/Defeasance(81)/Open(4)
114 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
123 120 117 360 360 LO(35)/Defeasance(81)/Open(4)
124 60 55 240 235 LO(35)/Defeasance(21)/Open(4)
137 104 103 360 359 LO(35)/Defeasance(65)/Open(4)
138 120 117 360 357 LO(35)/Defeasance(83)/Open(2)
140 120 120 324 324 LO(35)/Defeasance(81)/Open(4)
141 120 119 360 359 LO(35)/Flex(81)/Open(4)
147 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
148 120 119 360 359 LO(35)/Flex(81)/Open(4)
152 120 119 360 359 LO(25)/Defeasance(91)/Open(4)
153 120 119 300 299 LO(35)/Flex(81)/Open(4)
155 120 118 240 238 LO(35)/Flex(81)/Open(4)
157 120 119 360 359 LO(36)/Defeasance(80)/Open(4)
163 120 118 360 358 LO(35)/Defeasance(81)/Open(4)
166 120 118 360 360 LO(26)/Flex(90)/Open(4)
167 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
168 120 118 360 358 LO(35)/Flex(81)/Open(4)
170 120 116 360 356 LO(35)/Defeasance(81)/Open(4)
171 120 118 360 358 LO(35)/Defeasance(83)/Open(2)
172 120 115 360 355 LO(35)/Flex(81)/Open(4)
174 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
176 120 120 360 360 LO(24)/Defeasance(92)/Open(4)
180 120 118 360 358 LO(35)/Flex(81)/Open(4)
182 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
185 120 118 360 358 LO(35)/Flex(83)/Open(2)
187 120 118 360 358 LO(35)/Defeasance(81)/Open(4)
188 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
191 60 58 360 360 LO(35)/Flex(18)/Open(7)
197 120 119 300 299 LO(35)/Flex(81)/Open(4)
198 120 120 300 300 LO(35)/Defeasance(81)/Open(4)
199 120 117 360 357 LO(35)/Flex(81)/Open(4)
203 120 119 360 360 LO(35)/Defeasance(81)/Open(4)
204 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
205 120 120 360 360 LO(24)/Defeasance(92)/Open(4)
206 120 119 360 359 LO(35)/Defeasance(81)/Open(4)
207 120 118 360 358 LO(35)/Defeasance(81)/Open(4)
208 120 119 360 359 LO(35)/Flex(81)/Open(4)
209 120 118 360 358 LO(35)/Defeasance(83)/Open(2)
211 120 117 360 357 LO(35)/Flex(81)/Open(4)
212 120 119 300 299 LO(35)/Flex(81)/Open(4)
213 120 120 360 360 LO(24)/Defeasance(92)/Open(4)
GRACE PERIOD
OWNERSHIP ADMINISTRATIVE (PRIOR TO LETTER OF
ID INTEREST FEE RATE DUE DATE LATE FEES) LETTER OF CREDIT CREDIT DESCRIPTION
---------------------------------------------------------------------------------------------------
4 Fee 0.03125% 1st 5
4-a Fee
4-b Fee
4-c Fee
4-d Fee
4-e Fee
5 Fee 0.03125% 1st 5
16 Fee 0.03125% 5th 0
27 Fee 0.03125% 1st 5
28 Fee 0.03125% 1st 5
38 Fee 0.03125% 1st 5
41 Fee 0.03125% 1st 5
43 Fee 0.03125% 1st 5
46 Fee 0.03125% 1st 7
54 Fee 0.03125% 1st 5
56 Fee 0.03125% 1st 5
62 Fee 0.03125% 1st 5
64 Fee 0.03125% 1st 5
66 Fee 0.03125% 1st 5
69 Fee 0.03125% 1st 5
72 Fee 0.03125% 1st 5
73 Fee 0.03125% 1st 5
75 Fee 0.03125% 1st 5
77 Fee 0.03125% 1st 2
78 Fee 0.03125% 1st 5
82 Fee 0.03125% 1st 5
87 Fee 0.03125% 1st 5
88 Fee 0.03125% 1st 5
91 Fee 0.03125% 1st 5
92 Fee 0.11125% 1st 5 Yes ($325,000) Holdback(LOC)
103 Fee 0.03125% 1st 5
109 Fee 0.03125% 1st 5
114 Fee 0.03125% 1st 5
123 Fee 0.03125% 1st 5
124 Fee 0.03125% 1st 5
137 Fee 0.03125% 1st 5
138 Fee 0.03125% 1st 5
140 Leasehold 0.03125% 1st 5
141 Fee/Leasehold 0.08125% 1st 5
147 Fee 0.03125% 1st 5
148 Fee 0.03125% 1st 5
152 Fee 0.03125% 1st 5
153 Fee 0.03125% 1st 5
155 Fee 0.03125% 1st 5
157 Fee 0.03125% 1st 5
163 Fee 0.03125% 1st 5
166 Fee 0.03125% 1st 5
167 Fee 0.03125% 1st 5
168 Fee 0.03125% 1st 5
170 Fee 0.03125% 1st 5
171 Fee 0.03125% 1st 5
172 Fee 0.03125% 1st 5
174 Fee 0.08125% 1st 5
176 Fee 0.03125% 1st 5
180 Fee 0.03125% 1st 5
182 Fee 0.03125% 1st 5
185 Fee 0.07125% 1st 5
187 Fee 0.03125% 1st 5
188 Fee 0.03125% 1st 5
191 Fee 0.03125% 1st 5
197 Fee 0.03125% 1st 5
198 Fee 0.07125% 1st 5
199 Fee 0.03125% 1st 5
203 Fee 0.03125% 1st 5
204 Fee 0.03125% 1st 5 Yes ($110,000) Upfront TI/LC Reserve
205 Fee 0.07125% 1st 5
206 Fee 0.03125% 1st 5
207 Fee 0.03125% 1st 5
208 Fee 0.12125% 1st 5
209 Fee 0.07125% 1st 5
211 Fee 0.15125% 1st 5
212 Fee 0.15125% 1st 5
213 Fee 0.15125% 1st 5
INITIAL
MASTER MASTER SERVICING
ID LOAN SPONSOR SERVICER FEE RATE
-------------------------------------------------------------------------------------------------
4 Paul Milhous, Robert Milhous, Ropamil LP, Robert Milhous Trust
and Paul Milhous Trust WFB 0.03000%
4-a WFB 0.03000%
4-b WFB 0.03000%
4-c WFB 0.03000%
4-d WFB 0.03000%
4-e WFB 0.03000%
5 Dennis Doyle WFB 0.03000%
16 High Street Real Estate Fund II WFB 0.03000%
27 Oscar E Stefanutti, William Widmyer, Fred Gordon WFB 0.03000%
28 Oscar E Stefanutti, William Widmyer, Fred Gordon WFB 0.03000%
38 Joseph Pacitti, Hersha Hospitality Trust WFB 0.03000%
41 Jorge Ibarra WFB 0.03000%
43 Marc F. Solomon WFB 0.03000%
46 Jana Yohanan WFB 0.03000%
54 Paul F. Queyrel WFB 0.03000%
56 Ivan Stern WFB 0.03000%
62 Gerald Bedrin, Paul Bedrin WFB 0.03000%
64 Richard Siegert WFB 0.03000%
66 Hersha Hospitality Trust WFB 0.03000%
69 Steve Mote, Robert J. Wustner WFB 0.03000%
72 David Wespiser, Brian Kelly, James Clawson, Robert Ciampa,
Anil B. Patel, Gunvant C. Shah, Hasmukh P. Patel,
Mahendra K. Enaker, Ketan B. Pema, Mike Monchino, Don Johnson,
Harold D. Smith, Dan Fauske (& Elaine), Elizabeth Swailes WFB 0.03000%
73 Nayan Patel WFB 0.03000%
75 Jeanne Sommerville, B. Raymond Russo WFB 0.03000%
77 Michael Tennenbaum WFB 0.03000%
78 Richard D Kessler, Bruce M Kessler WFB 0.03000%
82 Alan Jacobs, Robert Koenig, John Whalen WFB 0.03000%
87 Dave Dollinger WFB 0.03000%
88 Bharat Patel WFB 0.03000%
91 Richard C Lundin WFB 0.03000%
92 Leon Heller, David Nankin WFB 0.11000%
103 Hersha Hospitality Trust WFB 0.03000%
109 Floyd R Ervin, Junetta D. Ervin WFB 0.03000%
114 Steve Glusker, Donald Baron, Ed Franklin WFB 0.03000%
123 J. Russell Pitto WFB 0.03000%
124 Wallace Krone WFB 0.03000%
137 Steve Glusker, Donald Baron, Ed Franklin WFB 0.03000%
138 Shirley K. Osumi WFB 0.03000%
140 John Thompson, Mr. Paul Thrift, Gregory Gibson WFB 0.03000%
141 Concolo, Inc. WFB 0.08000%
147 Kerry Riordan-Sykes, Sean Riordan, Mike Riordan WFB 0.03000%
148 Richard LK Mendenhall WFB 0.03000%
152 Aida G. Norhadian, Armen Norhadian WFB 0.03000%
153 Hersha Hospitality Trust WFB 0.03000%
155 Adiel L Adams, Aiken Storage Company, LLC WFB 0.03000%
157 Suad J. Khuri, Jamil Khuri WFB 0.03000%
163 Iona Robinson, Leigh Robinson WFB 0.03000%
166 Robert A McHugh, Michael C Jaeger WFB 0.03000%
167 Donald Drew Pearson WFB 0.03000%
168 Greg Stille, Eric Stille, David Knox, Mark Engstrom WFB 0.03000%
170 Roger Schumacher, Thomas Cloutier, Jonathan Foss, Warm Water
Pools of Savage, LLC WFB 0.03000%
171 Melanie Kaiser, Melanie C. Kaiser Trust Dated 2/25/03, GST
Trust under the Marilyn B. Kaiser Living Trust dated 8/31/88 WFB 0.03000%
172 Donald Drew Pearson WFB 0.03000%
174 James J Lennon, Jacqueline Prokop, Cindy M Lennon, Mark Prokop,
New Liberty Investments, LLP WFB 0.08000%
176 M. Robert Cook WFB 0.03000%
180 Jon Gruber WFB 0.03000%
182 Steve H. Osman WFB 0.03000%
185 P. Randall ten Doesschate WFB 0.07000%
187 Andrew M. Kaplan WFB 0.03000%
188 Kaercher James, Patch R. John, J Squared Properties, LLC WFB 0.03000%
191 Ralph Wintrode, Mark Brecheen, David Kray, Rodney Richerson WFB 0.03000%
197 Natasha Von Imhof, Rudi Von Imhof WFB 0.03000%
198 John Thompson, Mr. Paul Thrift, Thompson Thrift Properties, LLC WFB 0.07000%
199 Joseph Patros, Scott Patros WFB 0.03000%
203 Douglas Nestler WFB 0.03000%
204 Robert Lofgren, Jeffrey Lund, John Dalen WFB 0.03000%
205 M. Robert Cook WFB 0.07000%
206 Louis Johnson, Oceola Multi, LLC WFB 0.03000%
207 Michael J Feller WFB 0.03000%
208 Jack J. Jakosky WFB 0.12000%
209 Allen Capital Partners, LLC, Glen Teter, Byron Dietrich WFB 0.07000%
211 Phyllis Ziman Cutler, Larry D Ziman, Curtis Ziman,
Allan W Ziman, Richard S. Ziman WFB 0.15000%
212 Liliane Bien, Ralph Bien WFB 0.15000%
213 Bruce S. Cook WFB 0.15000%
SCHEDULE I-D
SCHEDULE OF PCF POOLED MORTGAGE LOANS
S-I-D-1
SELLER
LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------
9 754932 Titan Portfolio 1 Various Various
9-a 754932 Titan - San Antonio 11825-11995 Starcrest San Antonio
9-b 754932 Titan - El Paso 7 & 11 Leigh Fisher, 25 Butterfield Trails
& 15 Zane Grey El Paso
9-c 754932 Titan - McAllen 3700 & 3701 Ursula McAllen
9-d 754932 Titan - Santa Teresa 4950 Avenida Creel Santa Teresa
21 754981 Hickory Palos Square 1 9500-9622 Roberts Road & 8051 & 8069 95th Street Hickory Hills
23 754888 1314 Douglas Street 1 1314 Douglas Street Omaha
37 754977 American Business Center 1 2501 165th Street Hammond
53 754995 Tri-City Pavilions 1 67 North Dobson Road Mesa
81 754836 Parkway Plaza 1 869 Lynnhaven Parkway Virginia Beach
90 754861 Terraces at Windy Hill 1 3000 Windy Hill Road Marietta
93 754919 Oakbrook Apartments 2 7670 North Oakbrook Drive Reynoldsburg
100 754896 Columbiana Crossing 1 285 Columbiana Drive Columbia
101 754900 Crestview Apartments 2 101 Lewis Drive Millersville
118 754915 Belcher Commons-Phase II 1 51 South Main Avenue Clearwater
120 754914 Moore Plaza 1 1305 Veterans Parkway Clarksville
127 754975 Security Central Storage 1 2960 Old Hickory Blvd. Nashville
128 754903 Willow Pond Plaza 1 269 Mt. Hermon Road Scotts Valley
129 754898 1305 N. Casaloma Drive 1 1305 N. Casaloma Drive Grand Chute
131 754949 The Shops at Stratford Hills 1 7001 and 7017 Forest Hills Avenue Richmond
132 754982 Rancho El Mirage Plaza 1 13915 North Dysart Road El Mirage
135 754946 Hillside Garden Apartments 2 3 Hillside Avenue Rockaway
136 754947 Highland Terrace Apartments 2 414 Highland Avenue Clifton
145 754925 Ethan Way Office Building 1 1440-1460 Ethan Way Sacramento
146 754897 Desert Pointe Center 1 3141 East Beardsley Road Phoenix
150 754984 Grand Avenue Parkway S/C 1 1615-1625 Grand Ave Pkwy Pflugerville
151 754878 Grandview Hills Shopping Center 1 7814 Ranch Road 620 N Austin
156 754926 A.J. Wright 1 2958 Niles Street Bakersfield
162 754978 54 N. Central Avenue 1 54 N. Central Avenue Campbell
173 754952 Columbia Pike Gateway 1 5860 Columbia Pike Falls Church
177 754907 University Oaks Plaza 1 10000 University Boulevard Orlando
178 754910 505 Jefferson Road 1 505 Jefferson Road Secaucus
179 754891 Windhill/Sunbelt Industrial Properties 1 145 Windhill Road and 110-B Sunbelt Blvd Columbia
183 754989 8818 West Broad Street 1 8818 W Broad Street Richmond
184 754920 South Tracy Industrial Building 5 1 3402 Mars Court Tracy
189 754923 10223 Sepulveda Boulevard 1 10223 Sepulveda Boulevard Mission Hills
193 754940 43-15 - 43-27 33rd Street 1 43-15 43-27 33rd Street Long Island City
194 754985 2 Connecticut Drive South 1 2 Connecticut Drive South East Granby
195 754921 South Tracy Industrial Building 6 1 3502 Mars Way Tracy
196 754886 2106 North Forbes Boulevard 1 2106 North Forbes Boulevard Tucson
200 754941 10 Putnam Pike (Route 44) 1 10 Putnam Pike (Route 44) Johnston
201 754893 350 Pleasant Valley Road 1 350 Pleasant Valley Road South Windsor
202 754895 2101 E. Cooley Drive 1 2101 E. Cooley Drive Colton
210 754948 River Drive Village Apartments 2 424 River Drive Garfield
ORIGINAL
TERM
P&I IO MATURITY TO
CUT-OFF MONTHLY MONTHLY INTEREST ARD DATE MATURITY
ORIGINAL DATE DEBT DEBT MORTGAGE ACCRUAL LOAN OR OR
ID STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE BASIS (Y/N) ARD ARD (MOS.)
-----------------------------------------------------------------------------------------------------------------------------
9 Various Various 30,895,000 30,895,000 192,644 166,279 6.37000% Actual/360 Yes 05/01/12 72
9-a TX 78247 16,360,000 16,360,000
9-b TX 79906 7,675,000 7,675,000
9-c TX 78503 4,445,000 4,445,000
9-d NM 88008 2,415,000 2,415,000
21 IL 60457 19,600,000 19,600,000 119,536 102,011 6.16000% Actual/360 No 05/01/16 120
23 NE 68102 18,416,000 18,366,647 119,783 NAP 6.10000% Actual/360 Yes 04/01/16 120
37 IN 46320 13,905,000 13,905,000 85,887 65,801 6.28000% Actual/360 No 06/01/16 120
53 AZ 85201 9,400,000 9,400,000 56,539 47,891 6.03000% Actual/360 No 06/03/16 120
81 VA 23452 7,500,000 7,500,000 44,054 36,817 5.81000% Actual/360 No 06/01/16 120
90 GA 30067 7,000,000 7,000,000 39,701 32,470 5.49000% Actual/360 No 04/05/16 120
93 OH 43068 6,900,000 6,900,000 40,486 33,813 5.80000% Actual/360 No 05/03/16 120
100 SC 29212 6,300,000 6,300,000 36,326 30,021 5.64000% Actual/360 No 04/03/16 120
101 TN 37072 6,300,000 6,300,000 36,565 30,341 5.70000% Actual/360 No 04/01/16 120
118 FL 33765 5,100,000 5,100,000 29,827 24,863 5.77000% Actual/360 No 05/01/16 120
120 IN 47129 5,000,000 4,990,353 29,210 NAP 5.76000% Actual/360 No 04/01/16 120
127 TN 37221 4,340,000 4,340,000 27,356 21,158 5.77000% Actual/360 No 05/01/16 120
128 CA 95066 4,300,000 4,300,000 24,957 20,709 5.70000% Actual/360 No 04/03/16 120
129 WI 54913 4,200,000 4,196,276 24,483 NAP 5.74000% Actual/360 No 05/01/16 120
131 VA 23225 4,160,000 4,157,944 24,338 NAP 6.22000% Actual/360 No 05/01/16 120
132 AZ 85335 4,125,000 4,125,000 24,493 NAP 5.91000% Actual/360 No 06/01/16 120
135 NJ 7866 4,000,000 4,000,000 NAP 18,757 5.55000% Actual/360 No 04/01/16 120
136 NJ 07011 4,000,000 4,000,000 NAP 18,757 5.55000% Actual/360 No 04/01/16 120
145 CA 95825 3,675,000 3,668,064 21,704 NAP 5.86000% Actual/360 No 04/01/16 120
146 AZ 85050 3,670,000 3,662,950 21,487 NAP 5.78000% Actual/360 No 04/01/16 120
150 TX 78660 3,350,000 3,347,179 19,956 NAP 5.94000% Actual/360 No 05/01/16 120
151 TX 78726 3,337,500 3,334,586 19,583 NAP 5.80000% Actual/360 No 05/01/16 120
156 CA 93306 3,125,000 3,119,063 18,396 NAP 5.83000% Actual/360 No 04/01/16 120
162 CA 95008 2,600,000 2,597,811 15,488 NAP 5.94000% Actual/360 No 05/01/16 120
173 VA 22041 2,350,000 2,347,964 13,834 NAP 5.83000% Actual/360 No 05/01/16 120
177 FL 32817 2,200,000 2,195,765 12,867 NAP 5.77000% Actual/360 No 04/01/16 120
178 NJ 07094 2,200,000 2,195,530 15,610 NAP 5.88000% Actual/360 No 05/01/16 120
179 SC 29203 2,150,000 2,145,906 12,643 NAP 5.82000% Actual/360 No 04/03/16 120
183 VA 23294 2,000,000 1,998,475 12,393 NAP 6.31000% Actual/360 No 05/01/16 120
184 CA 95377 2,000,000 1,996,357 12,017 NAP 6.02000% Actual/360 No 04/01/16 120
189 CA 91345 1,800,000 1,798,504 10,780 NAP 5.99000% Actual/360 No 05/03/16 120
193 NY 11101 1,700,000 1,698,580 10,160 NAP 5.97000% Actual/360 No 05/01/16 120
194 CT 06026 1,700,000 1,697,885 11,089 NAP 6.13000% Actual/360 No 05/01/16 120
195 CA 95377 1,700,000 1,696,904 10,214 NAP 6.02000% Actual/360 No 04/01/16 120
196 AZ 85745 1,690,000 1,690,000 10,076 8,325 5.83000% Actual/360 No 04/01/16 120
200 RI 02919 1,555,000 1,553,711 9,323 NAP 6.00000% Actual/360 No 05/01/16 120
201 CT 06074 1,550,000 1,543,439 11,007 NAP 5.89000% Actual/360 No 04/01/16 120
202 CA 92324 1,500,000 1,500,000 8,801 7,351 5.80000% Actual/360 No 04/01/16 120
210 NJ 07026 1,140,000 1,140,000 NAP 5,452 5.66000% Actual/360 No 04/01/16 120
STATED
REMAINING
TERM
TO CROSSED
MATURITY ORIGINAL REMAINING WITH CROSSED PREPAYMENT
OR AMORTIZATION AMORTIZATION OTHER LOAN PROVISIONS OWNERSHIP ADMINISTRATIVE
ID ARD (MOS.) TERM (MOS.) TERM (MOS.) LOANS ID (# OF PAYMENTS) INTEREST FEE RATE
-----------------------------------------------------------------------------------------------------------------------------
9 71 360 360 GRTR1% or YM(70)/Open(2) Fee/Leasehold 0.03175%
9-a Fee
9-b Leasehold
9-c Fee
9-d Fee
21 119 360 360 LO(25)/Defeasance(93)/Open(2) Fee 0.03175%
23 118 300 298 LO(26)/Def/YM1%(92)/Open(2) Fee 0.03175%
37 120 360 360 LO(24)/Defeasance(92)/Open(4) Fee 0.03175%
53 120 360 360 GRTR1% or YM(116)/Open(4) Fee 0.03175%
81 120 360 360 LO(48)/GRTR1% or YM(70)/Open(2) Fee 0.03175%
90 118 360 360 LO(26)/Defeasance(92)/Open(2) Fee 0.03175%
93 119 360 360 LO(25)/Def/YM1%(93)/Open(2) Fee 0.03175%
100 118 360 360 LO(26)/Defeasance(92)/Open(2) Fee 0.03175%
101 118 360 360 LO(48)/GRTR1% or YM(70)/Open(2) Fee 0.03175%
118 119 360 360 LO(25)/Defeasance(93)/Open(2) Fee 0.03175%
120 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
127 119 300 300 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
128 118 360 360 LO(26)/Def/YM1%(90)/Open(4) Fee 0.03175%
129 119 360 359 LO(25)/Defeasance(93)/Open(2) Fee 0.03175%
131 119 420 419 LO(48)/GRTR1% or YM(70)/Open(2) Fee 0.03175%
132 120 360 360 LO(24)/GRTR1% or YM(92)/Open(4) Fee 0.03175%
135 118 0 0 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
136 118 0 0 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
145 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
146 118 360 358 LO(26)/GRTR1% or YM(91)/Open(3) Fee 0.03175%
150 119 360 359 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
151 119 360 359 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
156 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
162 119 360 359 LO(25)/Def/YM1%(93)/Open(2) Fee 0.03175%
173 119 360 359 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
177 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
178 119 240 239 LO(25)/Defeasance(93)/Open(2) Fee 0.03175%
179 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
183 119 360 359 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
184 118 360 358 LO(26)/GRTR1% or YM(87)/Open(7) Fee 0.03175%
189 119 360 359 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
193 119 360 359 LO(25)/GRTR1% or YM(91)/Open(4) Fee 0.03175%
194 119 300 299 LO(25)/GRTR1% or YM(93)/Open(2) Fee 0.03175%
195 118 360 358 LO(26)/GRTR1% or YM(87)/Open(7) Fee 0.03175%
196 118 348 348 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
200 119 360 359 LO(25)/Defeasance(91)/Open(4) Fee 0.03175%
201 118 240 238 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
202 118 360 360 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
210 118 0 0 LO(26)/GRTR1% or YM(92)/Open(2) Fee 0.03175%
GRACE
PERIOD
(PRIOR LETTER MASTER
TO LETTER OF INITIAL SERVICING
DUE LATE OF CREDIT MASTER FEE
ID DATE FEES) CREDIT DESCRIPTION LOAN SPONSOR SERVICER RATE
-------------------------------------------------------------------------------------------------------------------
9 1st 0 Mills, Ron; Ben Spencer; Kevin Reid; WFB 0.03050%
MAC Income I, LP
9-a WFB 0.03050%
9-b WFB 0.03050%
9-c WFB 0.03050%
9-d WFB 0.03050%
21 1st 0 Farahvar, Houshang; Farhad Nikanjam; WFB 0.03050%
Kourosh Youshaei
23 1st 0 World Investments, Inc.; Omaha WFB 0.03050%
World-Herald Company
37 1st 0 Lichter, Stuart, Frederic and Barbara WFB 0.03050%
Rosenberg
53 3rd 0 Greenstein, Jerald WFB 0.03050%
81 1st 0 Furman Family Associates; Lynnhaven, WFB 0.03050%
LLC, Commonwealth Associates
90 5th 0 Saperstein, Jan ; Jeffrey Kerker WFB 0.03050%
93 3rd 0 Lechiara, Steve WFB 0.03050%
100 3rd 0 Adkins, Charles T. WFB 0.03050%
101 1st 0 Ray, Chad M. WFB 0.03050%
118 1st 3 Burdge, Bruce; Kristen Kennedy WFB 0.03050%
Showalter
120 1st 0 Oppenheimer, Houston WFB 0.03050%
127 1st 0 Allen, Craig; Doris Allen WFB 0.03050%
128 3rd 0 McFarlane, Dennis; Douglas Usher; WFB 0.03050%
James Schmidt; Charles Seufferlein
129 1st 0 Kowalik, Jeffrey T.; Jeffrey J. WFB 0.03050%
Donovan
131 1st 0 Harper, Russell B. WFB 0.03050%
132 1st 0 Kermin, Don; John Bodenmann WFB 0.03050%
135 1st 0 Rosenblum, Melvin WFB 0.03050%
136 1st 0 Rosenblum, Melvin WFB 0.03050%
145 1st 0 Denzler, Gery; Christel Denzler WFB 0.03050%
146 1st 0 Evans, Robert WFB 0.03050%
150 1st 0 Howell, Paul R. WFB 0.03050%
151 1st 0 Whidbee, Hoyt; Kathleen Whidbee WFB 0.03050%
156 1st 0 Sneider, Arturo; Unitas Trust WFB 0.03050%
162 1st 0 Bowen, Bruce; Claudia Bowen-Cambell WFB 0.03050%
173 1st 0 Parnell, Steven; Mark Leader WFB 0.03050%
177 1st 0 Patel, Pradeep WFB 0.03050%
178 1st 0 Wils, Steven; Madelyn Wils WFB 0.03050%
179 3rd 0 Arnold, Norman J.; Ben D. Arnold WFB 0.03050%
183 1st 0 Conte Jr., Charles R.; David L. Conte WFB 0.03050%
184 1st 0 Dover Investments Corporation; JB WFB 0.03050%
Valley Devlopment Corporation
189 3rd 0 Boren, Jeffrey; David Yasher; Eric WFB 0.03050%
Friedland
193 1st 0 Dierks, John; Helga Dierks WFB 0.03050%
194 1st 0 DeMattia, John WFB 0.03050%
195 1st 0 Dover Investments Corporation; JB WFB 0.03050%
Valley Devlopment Corporation
196 1st 0 Yes ($40,130) Upfront TI/LC Reserve Walsh, John F.; D. Timothy Byrne; WFB 0.03050%
Sachiko T. Cochran
200 1st 0 Riverview Management Company Inc., WFB 0.03050%
201 1st 0 DeMattia, John WFB 0.03050%
202 1st 0 McKay, Joseph L. WFB 0.03050%
210 1st 0 Rosenblum, Melvin WFB 0.03050%
SCHEDULE I-E
SCHEDULE OF PCFII POOLED MORTGAGE LOANS
S-I-E-1
SELLER LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS CITY STATE ZIP CODE
--------------------------------------------------------------------------------------------------------------------------------
12 754876 Centre at Laurel 1 13600 Baltimore Avenue Laurel MD 20707
14 754867 Monandnock Marketplace 1 20 Ash Brook Road Keene NH 06431
49 754808 5150 Center Street 1 5150 Center Street Omaha NE 68106
59 754809 3870 Highway D 1 3870 Highway D Osage Beach MO 65049
60 754670 770 East El Camino Real 1 770 East El Camino Real Sunnyvale CA 94087
79 754807 201 West 10th Avenue 1 201 West 10th Avenue Milan IL 61264
94 754806 410 North Ankeny Boulevard 1 410 North Ankeny Boulevard Ankeny IA 50021
110 754750 Albany Industrial Park 1 4500 and 4512 Andrews Street North Las Vegas NV 89081
111 754751 5075 Cameron Street Industrial Building 1 5075 Cameron Street Las Vegas NV 89118
116 754810 2181 Logan Avenue 1 2181 Logan Avenue Waterloo IA 50703
122 754790 1337 Taylor Farm Road 1 1337 Taylor Farm Road Virginia Beach VA 23456
169 754737 Lovell Center 1 5800 Lovell Avenue Fort Worth TX 76107
186 754690 3205 SE 192nd Avenue 1 3205 SE 192nd Ave Vancouver WA 98683
190 754766 1735 U.S. Route 9 1 1735 U.S. Route 9 Clifton Park NY 12065
ORIGINAL
P&I MONTHLY IO MONTHLY INTEREST ARD TERM TO
ORIGINAL CUT-OFF DATE DEBT DEBT MORTGAGE ACCRUAL LOAN MATURITY DATE MATURITY OR
ID BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE BASIS (Y/N) OR ARD ARD (MOS.)
-----------------------------------------------------------------------------------------------------------------
12 27,200,000 27,200,000 NAP 109,933 4.85000% 30/360 No 03/01/13 84
14 26,785,000 26,785,000 NAP 108,926 4.88000% 30/360 No 03/01/13 84
49 9,847,254 9,847,254 NAP 47,595 5.80000% 30/360 Yes 03/01/16 120
59 8,937,088 8,937,088 NAP 41,185 5.53000% 30/360 Yes 02/01/16 120
60 8,932,000 8,932,000 50,547 41,733 5.47000% Actual/360 Yes 09/01/16 124
79 7,611,028 7,611,028 NAP 35,074 5.53000% 30/360 Yes 02/01/16 120
94 6,775,976 6,775,976 NAP 31,226 5.53000% 30/360 Yes 01/01/16 120
110 3,420,000 3,399,420 19,958 NAP 5.75000% Actual/360 No 12/01/15 120
111 2,260,000 2,246,429 13,203 NAP 5.76000% Actual/360 No 12/01/15 120
116 5,256,141 5,256,141 NAP 24,003 5.48000% 30/360 Yes 01/01/16 120
122 5,000,000 4,979,225 29,401 NAP 5.82000% Actual/360 No 02/01/16 120
169 2,500,000 2,492,803 14,463 NAP 5.67000% Actual/360 No 03/01/16 120
186 1,875,000 1,870,184 11,076 NAP 5.46000% Actual/360 No 04/01/16 120
190 1,800,000 1,792,332 12,730 NAP 5.84000% Actual/360 No 04/01/16 120
STATED
REMAINING
TERM TO ORIGINAL REMAINING CROSSED
MATURITY OR AMORTIZATION AMORTIZATION WITH OTHER CROSSED PREPAYMENT PROVISIONS OWNERSHIP ADMINISTRATIVE
ID ARD (MOS.) TERM (MOS.) TERM (MOS.) LOANS LOAN ID (# OF PAYMENTS) INTEREST FEE RATE
--------------------------------------------------------------------------------------------------------------------------------
12 81 0 0 LO(15)/GRTR1% or YM(67)/Open(2) Fee 0.03175%
14 81 0 0 LO(15)/GRTR1% or YM(67)/Open(2) Fee 0.03175%
49 117 0 0 LO(27)/Defeasance(91)/Open(2) Fee 0.03175%
59 116 0 0 LO(28)/Defeasance(90)/Open(2) Fee 0.03175%
60 123 360 360 LO(25)/Defeasance(97)/Open(2) Fee 0.03175%
79 116 0 0 LO(28)/Defeasance(90)/Open(2) Fee 0.03175%
94 115 0 0 LO(29)/Defeasance(89)/Open(2) Fee 0.03175%
110 114 360 354 Crossed B Crossed B LO(30)/GRTR1% or YM(88)/Open(2) Fee 0.03175%
111 114 360 354 Crossed B Crossed B LO(30)/GRTR1% or YM(88)/Open(2) Fee 0.03175%
116 115 0 0 LO(29)/Defeasance(89)/Open(2) Fee 0.03175%
122 116 360 356 LO(48)/GRTR1% or YM(70)/Open(2) Fee 0.03175%
169 117 360 357 LO(27)/Defeasance(89)/Open(4) Fee 0.03175%
186 118 324 322 LO(26)/Defeasance(90)/Open(4) Fee 0.03175%
190 118 240 238 LO(26)/Defeasance(92)/Open(2) Fee 0.03175%
GRACE PERIOD INITIAL MASTER
DUE (PRIOR TO LATE LETTER OF LETTER OF MASTER SERVICING FEE
ID DATE FEES) CREDIT CREDIT DESCRIPTION LOAN SPONSOR SERVICER RATE
--------------------------------------------------------------------------------------------------------------------------------
12 1st 0 Inland Western Retail Real Estate Trust, Inc. WFB 0.03050%
14 1st 0 Minto Builders (Florida), Inc. WFB 0.03050%
49 1st 5 Mesirow Realty-Sale Leaseback Inc. WFB 0.03050%
59 1st 5 Mesirow Realty-Sale Leaseback Inc. WFB 0.03050%
60 1st 0 Kessler, Randall; Gary A. Kessler WFB 0.03050%
79 1st 5 Mesirow Realty-Sale Leaseback Inc. WFB 0.03050%
94 1st 5 Economy Realty, LP WFB 0.03050%
110 1st 0 Albany, Anthony WFB 0.03050%
111 1st 0 Albany, Anthony WFB 0.03050%
116 1st 5 Mesirow Realty-Sale Leaseback Inc. WFB 0.03050%
122 1st 0 Gaylord, Robert; John A. Belcher;
James M. Beverly; Michael M. Evans;
Terry Forehand WFB 0.03050%
169 1st 0 Lydick, John; Lee Lydick; Robert Lydick WFB 0.03050%
186 1st 0 Killian, George WFB 0.03050%
190 1st 0 Nahl, Michael WFB 0.03050%
SCHEDULE I-F
SCHEDULE OF NATIONWIDE POOLED MORTGAGE LOANS
S-I-F-1
SELLER
LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS
-------------------------------------------------------------------------------------------------------------------
25 00-1101106 South Santa Fe Avenue 1 19801 South Santa Fe Avenue
33 00-1101139 Quad at Lowry IV 1 7901 East Lowry Boulevard
40 00-1101149 Hampton Inn Suites 1 19324 Alderwood Mall Parkway
48 00-1101165 Nicolet Office Center 1 111 North Washington Street
51 00-1101159 Arcadia Village SC & Fiesta Shops West 1 Various
51-a 00-1101159A Arcadia Village SC 3939 East Camelback Road
51-b 00-1101159B Fiesta Shops West 825 - 851 West University Drive
70 00-1101005 College Park Apartments 2 899 Dogwood Avenue
74 00-1101132 Chesterfield Square 1 51375 Gratiot Avenue and 23 Mile & Gratiot Avenue
96 00-1101081 Courtyard Marriott Orlando 1 12000 Collegiate Way
108 00-1101124 Laurel Commons 1 37100 Six Mile Road
142 00-1101142 Hidden Lakes Center 1 8955 Wake Fern Drive
154 00-1101133 Bonita Commerce Center 1 25150 Bernwood Drive
158 00-1101134 City Mattress Center 1 24611 Production Circle
P&I MONTHLY IO MONTHLY INTEREST
ORIGINAL CUT-OFF DATE DEBT DEBT MORTGAGE ACCRUAL ARD LOAN
ID CITY STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE BASIS (Y/N)
---------------------------------------------------------------------------------------------------------------------------------
25 Rancho Dominguez CA 90221 17,500,000 17,500,000 101,238 NAP 5.67000% Actual/360 No
33 Denver CO 80230 14,500,000 14,500,000 86,283 72,649 5.93000% Actual/360 No
40 Lynnwood WA 98036 13,000,000 12,975,950 77,524 NAP 5.95000% Actual/360 No
48 Green Bay WI 54301 10,870,000 10,870,000 68,779 53,360 5.81000% Actual/360 No
51 Various AZ Various 9,500,000 9,500,000 57,447 NAP 6.08000% Actual/360 No
51-a Phoenix AZ 85018 7,421,875 7,421,875
51-b Tempe AZ 85281 2,078,125 2,078,125
70 Lemoore CA 93245 8,080,000 8,056,579 46,590 NAP 5.64000% Actual/360 No
74 Chesterfield Township MI 48051 8,000,000 7,983,948 45,825 NAP 5.58000% Actual/360 No
96 Orlando FL 32817 6,700,000 6,681,252 42,556 NAP 5.85000% Actual/360 No
108 Livonia MI 48152 6,000,000 5,988,651 35,396 NAP 5.85000% Actual/360 No
142 Bonita Springs FL 34135 3,900,000 3,900,000 22,933 NAP 5.82000% Actual/360 No
154 Bonita Springs FL 34135 3,220,000 3,213,692 18,668 NAP 5.69000% Actual/360 No
158 Bonita Springs FL 34135 3,050,000 3,043,959 17,586 NAP 5.64000% Actual/360 No
MATURITY ORIGINAL TERM STATED REMAINING ORIGINAL REMAINING CROSSED
DATE TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION WITH CROSSED PREPAYMENT PROVISIONS
ID OR ARD OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) TERM (MOS.) OTHER LOANS LOAN ID (# OF PAYMENTS)
----------------------------------------------------------------------------------------------------------------------------------
25 06/01/16 120 120 360 360 LO(24)/Defeasance(92)/Open(4)
33 03/01/16 120 117 360 360 LO(27)/Defeasance(89)/Open(4)
40 04/01/16 120 118 360 358 LO(48)/GRTR1% or YM(68)/Open(4)
48 06/01/16 120 120 300 300 LO(24)/Defeasance(92)/Open(4)
51 06/01/16 120 120 360 360 LO(48)/GRTR1% or YM(67)/Open(5)
51-a
51-b
70 03/01/16 120 117 360 357 LO(47)/GRTR1% or YM(69)/Open(4)
74 04/01/16 120 118 360 358 LO(26)/Defeasance(90)/Open(4)
96 04/01/16 120 118 300 298 LO(26)/Defeasance(90)/Open(4)
108 04/01/16 120 118 360 358 LO(47)/GRTR1% or YM(68)/Open(5)
142 06/01/16 120 120 360 360 LO(24)/Defeasance(92)/Open(4)
154 04/01/16 120 118 360 358 LO(26)/Defeasance(90)/Open(4)
158 04/01/16 120 118 360 358 LO(26)/Defeasance(90)/Open(4)
OWNERSHIP ADMINISTRATIVE GRACE PERIOD LETTER OF
ID INTEREST FEE RATE DUE DATE (PRIOR TO LATE FEES) LETTER OF CREDIT CREDIT DESCRIPTION
-------------------------------------------------------------------------------------------------------------
25 Fee 0.08675% 1st 0
33 Fee 0.10675% 1st 0
40 Fee 0.10675% 1st 0
48 Fee 0.10675% 1st 0 Yes ($126,000) Citigroup Letter of Credit
51 Fee 0.09675% 1st 0
51-a Fee
51-b Fee
70 Fee 0.10675% 1st 0
74 Fee 0.10675% 1st 0
96 Leasehold 0.29675% 1st 0
108 Fee 0.10675% 1st 0
142 Fee 0.10675% 1st 0
154 Fee 0.10675% 1st 0
158 Fee 0.10675% 1st 0
INITIAL MASTER
MASTER SERVICING
ID LOAN SPONSOR SERVICER FEE RATE
------------------------------------------------------------------------------------
25 Paul Amir WFB 0.08550%
33 The Schomac Group, Inc. WFB 0.10550%
40 Nizar Damji, Mariyam Damji WFB 0.10550%
48 Robert Weyers, Jeffrey Weyers, Paul Klister WFB 0.10550%
51 David Christenholz, Christopher Nottoli WFB 0.09550%
51-a WFB 0.09550%
51-b WFB 0.09550%
70 Andrew Fuller, Jeffrey M. Mayer WFB 0.10550%
74 Frank Jonna, Christine Jonna Piligian WFB 0.10550%
96 Richard L. Vilardo, Ronald E. Franklin WFB 0.29550%
108 Jay Ross WFB 0.10550%
142 Rick Larson, Walter L. Bush, Jr. WFB 0.10550%
154 Steven T. Hovland WFB 0.10550%
158 Steven T. Hovland, Michael Mancuso, Dr. John Mauriel, Jr. WFB 0.10550%
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
(UNDER SECTION 2.02(A) OF THIS AGREEMENT)
[There are no exceptions.]
S-II-1
SCHEDULE III
SCHEDULE OF DESIGNATED SUB-SERVICERS
Control Pooled
Number Mortgage Pooled Cut-off Term.
(Pros- Loan Mortgage Date Sub- Without
pectus Seller Loan Principal Servicing Cause
ID) Number Loan/Property Name Seller Balance Fee Rate Fee Sub-Servicer
------- ---------- -------------------------------------- ---------- ----------- --------- ------- ------------------------
3 6106457 Orange Plaza PMCF $90,500,000 0.010% None Prudential Mortgage
Capital Company LLC
("PMCC") (or a Person
designated by PMCC)
6 45441 Tower at Erieview BSCMI $43,500,000 0.040% None CBRE Melody of Texas
7 6106455 Embassy Office Park - Pool A PMCF $36,350,000 0.050% None PMCC or a Person
designated by PMCC)
8 6106168 Calypso Bay Apartments PMCF $32,934,213 0.030% None PMCC or a Person
designated by PMCC)
11 6106456 Embassy Office Park - Pool B PMCF $28,650,000 0.050% None PMCC or a Person
designated by PMCC)
25 00-1101106 South Santa Fe Avenue Nationwide $17,500,000 0.040% None Northmarq Capital
30 45599 Sweetwater Square BSCMI $16,500,000 0.020% None Pacific Southwest Realty
Services
33 00-1101139 Quad at Lowry IV Nationwide $14,500,000 0.060% None Capmark Finance
35 45879 McHenry Town Center BSCMI $14,100,000 0.040% None CMBS Originations
39 6106424 Meadows Plaza PMCF $13,000,000 0.050% None PMCC or a Person
designated by PMCC)
40 00-1101149 Hampton Inn Suites Nationwide $12,975,950 0.060% None CBRE Melody of Texas
47 6106440 City Center, Oakland PMCF $11,350,000 0.030% None PMCC or a Person
designated by PMCC)
48 00-1101165 Nicolet Office Center Nationwide $10,870,000 0.060% None Collateral Mortgage
50 6106482 Woodlake Center PMCF $9,500,000 0.050% None PMCC or a Person
designated by PMCC)
51 00-1101159 Arcadia Village SC & Fiesta Shops West Nationwide $9,500,000 0.050% None Capmark Finance
55 6106505 McCallum Highlands PMCF $9,200,000 0.020% None PMCC or a Person
designated by PMCC)
58 6106404 Bellevue Plaza PMCF $8,974,326 0.050% None PMCC or a Person
designated by PMCC)
70 00-1101005 College Park Apartments Nationwide $8,056,579 0.060% None Holliday Fenoglio Fowler
74 00-1101132 Chesterfield Square Nationwide $7,983,948 0.060% None Capmark Finance
S-III-1
92 610903741 Radisson Hotel - Kenosha WFB $6,971,122 0.080% None Capmark Finance
96 00-1101081 Courtyard Marriott Orlando Nationwide $6,681,252 0.250% None Rockbridge Capital
102 45886 6901 Riverport Drive BSCMI $6,250,000 0.040% None Northmarq Capital
106 6106253 Newport Square Apartments PMCF $6,087,839 0.050% None PMCC or a Person
designated by PMCC)
108 00-1101124 Laurel Commons Nationwide $5,988,651 0.060% None Capmark Finance
121 6105998 Rugby Valley Apartments PMCF $4,984,870 0.050% None PMCC or a Person
designated by PMCC)
141 620903610 Canon Plaza WFB $3,916,794 0.050% None DePaul Real Estate
Investment
142 00-1101142 Hidden Lakes Center Nationwide $3,900,000 0.060% None Laureate Capital
154 00-1101133 Bonita Commerce Center Nationwide $3,213,692 0.060% None Laureate Capital
158 00-1101134 City Mattress Center Nationwide $3,043,959 0.060% None Laureate Capital
159 6106493 University Square PMCF $3,000,000 0.050% None PMCC or a Person
designated by PMCC)
160 6106429 Walgreens Ohio Portfolio PMCF $2,994,148 0.040% None PMCC or a Person
designated by PMCC)
164 46028 Markets at Mesa Ridge BSCMI $2,540,000 0.050% None Holliday Fenoglio Fowler
165 45964 1300 Post Road East BSCMI $2,500,000 0.060% None CBRE Melody of Texas
174 620903989 Bridge Street Square WFB $2,318,047 0.050% None Northmarq Capital
175 46390 Castle Arms Apartments BSCMI $2,005,000 0.050% None Holliday Fenoglio Fowler
S-III-2
SCHEDULE IV
[RESERVED]
S-IV-1
SCHEDULE V
BORROWER THIRD-PARTY BENEFICIARIES
(UNDER SECTION 2.03)
1. The Borrowers under the Group of Cross-Collateralized Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as Baylor Medical Plaza and Baylor Surgicare Grapevine.
2. The Borrowers under the Group of Cross-Collateralized Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as Albany Industrial Park and 5075 Cameron Street Industrial Building.
S-V-1
SCHEDULE VI
CLASS A-AB PLANNED PRINCIPAL BALANCES
CLASS A-AB
PLANNED
PRINCIPAL
DISTRIBUTION DATE BALANCE ($)
----------------- --------------
July 2006 119,800,000.00
August 2006 119,800,000.00
September 2006 119,800,000.00
October 2006 119,800,000.00
November 2006 119,800,000.00
December 2006 119,800,000.00
January 2007 119,800,000.00
February 2007 119,800,000.00
March 2007 119,800,000.00
April 2007 119,800,000.00
May 2007 119,800,000.00
June 2007 119,800,000.00
July 2007 119,800,000.00
August 2007 119,800,000.00
September 2007 119,800,000.00
October 2007 119,800,000.00
November 2007 119,800,000.00
December 2007 119,800,000.00
January 2008 119,800,000.00
February 2008 119,800,000.00
March 2008 119,800,000.00
April 2008 119,800,000.00
May 2008 119,800,000.00
June 2008 119,800,000.00
July 2008 119,800,000.00
August 2008 119,800,000.00
September 2008 119,800,000.00
October 2008 119,800,000.00
November 2008 119,800,000.00
December 2008 119,800,000.00
January 2009 119,800,000.00
February 2009 119,800,000.00
March 2009 119,800,000.00
April 2009 119,800,000.00
May 2009 119,800,000.00
June 2009 119,800,000.00
July 2009 119,800,000.00
August 2009 119,800,000.00
September 2009 119,800,000.00
October 2009 119,800,000.00
November 2009 119,800,000.00
December 2009 119,800,000.00
January 2010 119,800,000.00
February 2010 119,800,000.00
March 2010 119,800,000.00
April 2010 119,800,000.00
May 2010 119,800,000.00
June 2010 119,800,000.00
July 2010 119,800,000.00
August 2010 119,800,000.00
September 2010 119,800,000.00
October 2010 119,800,000.00
November 2010 119,800,000.00
December 2010 119,800,000.00
January 2011 119,800,000.00
February 2011 119,800,000.00
March 2011 119,800,000.00
April 2011 119,800,000.00
May 2011 119,800,000.00
June 2011 119,783,007.79
July 2011 117,651,000.00
August 2011 115,770,000.00
September 2011 113,880,000.00
October 2011 111,720,000.00
November 2011 109,809,000.00
December 2011 107,630,000.00
January 2012 105,699,000.00
February 2012 103,758,000.00
March 2012 101,290,000.00
April 2012 99,327,000.00
May 2012 97,100,000.00
June 2012 95,146,000.00
July 2012 92,932,000.00
August 2012 90,958,000.00
September 2012 88,974,000.00
October 2012 86,730,000.00
November 2012 84,725,000.00
December 2012 82,460,000.00
January 2013 80,433,000.00
February 2013 78,397,000.00
March 2013 75,700,000.00
April 2013 73,733,000.00
May 2013 71,511,000.00
June 2013 69,515,000.00
July 2013 67,274,000.00
August 2013 65,257,000.00
September 2013 63,230,000.00
October 2013 60,958,000.00
November 2013 58,910,000.00
December 2013 56,617,000.00
January 2014 54,547,000.00
February 2014 52,467,000.00
March 2014 49,676,000.00
April 2014 47,571,000.00
May 2014 45,223,000.00
June 2014 43,096,000.00
July 2014 40,747,000.00
August 2014 38,617,000.00
September 2014 36,476,000.00
October 2014 34,095,000.00
November 2014 31,931,000.00
December 2014 29,529,000.00
January 2015 23,883,000.00
February 2015 21,692,000.00
March 2015 18,810,000.00
April 2015 16,594,000.00
May 2015 14,141,000.00
June 2015 11,901,000.00
July 2015 9,425,000.00
August 2015 7,161,000.00
September 2015 4,886,000.00
October 2015 2,377,000.00
November 2015 78,000.00
December 2015 0.00
S-VI-1
SCHEDULE VII
CLOSING DATE DEPOSIT MORTGAGE LOANS
AND RELATED CLOSING DATE DEPOSIT AMOUNTS
[None.]
S-VII-1
SCHEDULE VIII
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",
provided that, for the avoidance of doubt this Schedule VIII shall not require
any assessment of any criterion to the extent that the assessment of such
criterion is not required under the terms of Regulation AB. In addition, this
Schedule VIII shall not be construed to impose on any Person any servicing duty
that is not otherwise imposed on such Person under the main body of the Pooling
and Servicing Agreement of which this Schedule VIII forms a part or to require
an assessment of a criterion that is not encompassed by the servicing duties of
the applicable party that are set forth in the main body of such Pooling and
Servicing Agreement.
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any Certificate Administrator
performance or other triggers and events of default in Master Servicer
accordance with the transaction agreements. Special Servicer
Primary Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third Certificate Administrator
parties, policies and procedures are instituted to monitor the Master Servicer
third party's performance and compliance with such servicing Special Servicer
activities. Primary Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a N/A
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect Certificate Administrator
on the party participating in the servicing function Trustee
throughout the reporting period in the amount of coverage Master Servicer
required by and otherwise in accordance with the terms of the Special Servicer
transaction agreements. Primary Servicer
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate Certificate Administrator
custodial bankaccounts and related bank clearing accounts no Master Servicer
more than two business days following receipt, or such other Special Servicer
number of days specified in the transaction agreements. Primary Servicer
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor Certificate Administrator
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash Master Servicer
flows or distributions, and any interest or other fees charged Special Servicer
for such advances, are made, reviewed and approved as Trustee
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Certificate Administrator
accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained (e.g., with Special Servicer
respect to commingling of cash) as set forth in the Primary Servicer
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Certificate Administrator
depository institution as set forth in the transaction Master Servicer
agreements. For purposes of this Special Servicer
S-VIII-1
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
criterion, "federally insured depository institution" with Primary Servicer
respect to a foreign financial institution means a foreign
financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Master Servicer
access. Special Servicer
Certificate Administrator
Primary Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Certificate Administrator
asset-backed securities related bank accounts, including Master Servicer
custodial accounts and related bank clearing accounts. These Special Servicer
reconciliations (A) are mathematically accurate; (B) are Primary Servicer
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) are 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 Certificate Administrator
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
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Certificate Administrator
accordance with 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 Certificate Administrator
business days to the 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 Certificate Administrator
with cancelled 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 Trustee
required by the transaction agreements or related mortgage Master Servicer
loan documents. Special Servicer
Primary Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Trustee
required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Trustee
made, reviewed and approved in accordance with any conditions Master Servicer
or requirements in the transaction agreements. Special Servicer
Primary Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Master Servicer
accordance with the related mortgage loan documents are posted Special Servicer
to the Servicer's obligor Primary Servicer
S-VIII-2
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
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 related
mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with Master Servicer
the Servicer's records with respect to an obligor's unpaid Primary Servicer
principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's Master Servicer
mortgage loans (e.g., loan modifications or re-agings) Special Servicer
are made, reviewed and approved by authorized personnel in Primary Servicer
accordance with the transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, Master Servicer
modifications and deeds in lieu of foreclosure, foreclosures Special Servicer
and repossessions, as 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 Master Servicer
the period a mortgage loan is delinquent in accordance with Special Servicer
the transaction agreements. Such records are maintained on at Primary Servicer
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 temporary (e.g., illness
or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage Master Servicer
loans with variable rates are computed based on the related Primary Servicer
mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as Master Servicer
escrow accounts): (A) such funds are analyzed, in accordance Primary Servicer
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
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or Master Servicer
insurance payments) are made on or before the related penalty Primary Servicer
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 agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to Master Servicer
be made on behalf of an obligor are paid from the servicer's Primary Servicer
funds and not charged to 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 Master Servicer
two business days to the obligor's records maintained by the Primary Servicer
servicer, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer
recognized and recorded in accordance with the transaction Primary Servicer
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item N/A
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the
S-VIII-3
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
transaction agreements.
S-VIII-4
SCHEDULE IX
ADDITIONAL FORM 10-D DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.06 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Certificate Administrator 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, annual
operating statements, budgets and/or rent rolls required to be provided in
connection with Item 6 below, possession) of such information (other than
information as to itself). Each of the Certificate Administrator, the Trustee,
each Master Servicer, each Primary Servicer and each 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 Pooled Mortgage Loan Seller. Each of the
Certificate Administrator, the Trustee, each Master Servicer, each Primary
Servicer and each Special Servicer (in its capacity as such) shall be entitled
to assume that there is no "significant obligor" other than a party or property
identified as such in the Prospectus Supplement and to assume that no other
party or property will constitute a "significant obligor" after the Cut-off
Date. In no event shall a Master Servicer, Primary Servicer or Special Servicer
be required to provide any information for inclusion in a Form 10-D that relates
to any Mortgage Loan for which such Master Servicer, Primary Servicer or Special
Servicer is not the applicable Master Servicer, Primary Servicer or Special
Servicer, as the case may be. For this Series 2006-PWR12 Pooling and Servicing
Agreement, each of the Certificate Administrator, the Trustee, each Master
Servicer, each Primary Servicer and each 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.
ITEM ON FORM 10-D PARTY RESPONSIBLE
------------------------------ -----------------------------------------------
Item 1A: Distribution and Pool o Certificate Administrator/Trustee
Performance Information:
o Item 1121(a)(13) of
Regulation AB
Item 1B: Distribution and Pool o Certificate Administrator/Trustee
Performance Information:
o Depositor
o Item 1121(a)(14) of
Regulation AB
Item 2: Legal Proceedings: o Each Master Servicer (as to itself)
o Item 1117 of o Each Special Servicer (as to itself)
Regulation AB
o Certificate Administrator (as to itself)
o Trustee (as to itself)
S-IX-1
o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/Certificate Administrator/Master
Servicer/Depositor/Special Servicer as to
the Trust
o Each Pooled Mortgage Loan 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 o Depositor
Use of Proceeds
Item 4: Defaults Upon Senior o Certificate Administrator
Securities
o Trustee
Item 5: Submission of Matters o Certificate Administrator
to a Vote of Security Holders
o Trustee
Item 6: Significant Obligors o Each Master Servicer (as to Mortgage Loans
of Pool Assets: for which it is the applicable Master
Servicer and excluding information for
o Item 1112(b) of which the applicable Primary Servicer or
Regulation AB the applicable Special Servicer is the
provided, however, "Party Responsible")
that all of the
following conditions o Each Primary Servicer (as to Mortgage
shall apply: Loans for which it is the applicable
Primary
(a) information
shall be required to o Each Special Servicer (as to REO
be reported only Properties for which it is the applicable
with respect to a Special Servicer)
party Servicer) or
property (if any)
identified as a
"significant
obligor" in the
Prospectus
Supplement;
(b) the information
to be reported shall
consist of such
quarterly and annual
operating
statements, budgets
and rent rolls of
the related
Mortgaged Property
or REO Property (as
applicable), and
quarterly and annual
financial statements
of the
S-IX-2
related Borrower
(except in the case
of an REO Property),
received or prepared
by the "Party
Responsible"
pursuant to its
obligations under
Section 3.12(b) of
this Pooling and
Servicing Agreement
(or, if the "Party
Responsible" is a
Primary Servicer,
pursuant to the
similar obligations
of such Primary
Servicer under the
related Primary
Servicing
Agreement); and
(c) the information
shall be reportable
in the Form 10-D
that relates to the
Distribution Date
that immediately
follows the
Collection Period in
which the
information was
received or prepared
by the "Party
Responsible" as
described in clause
(b) above.
Item 7: Significant o Depositor
Enhancement Provider
Information:
o Item 1114(b)(2) and
Item 1115(b) of
Regulation AB
Item 8: Other Information, but o Certificate Administrator, Trustee, each
only to the extent of any Master Servicer, each Primary Servicer
information that meets all the and/or each Special Servicer, in each case
following conditions: (a) such to the extent that such party is the
information constitutes "Party Responsible" with respect to such
"Additional Form 8-K information pursuant to Schedule XI.
Disclosure" pursuant to
Schedule XI, (b) such
information is required to be
reported as "Additional Form
8-K Disclosure" during the
period to which the Form 10-D
relates, and (c) such
information was not previously
reported as "Additional Form
8-K Disclosure".
Item 9: Exhibits (no. 3): o Depositor
Articles of incorporation and
by-laws (Exhibit No. 3(i) and
3(ii) of Item 601 of
Regulation S-K)
Item 9: Exhibits (no. 4): o Trustee
With respect to instruments o Certificate Administrator
defining the rights of
security holders (Exhibit No.
4 of Item 601 of
S-IX-3
Regulation S-K) provided, in each case, that this shall in no
event be construed to make such party
responsible for the initial filing of this
Pooling and Servicing Agreement
Item 9: Exhibits (no. 10): o Certificate Administrator, Trustee, each
Master Servicer, each Primary Servicer
Material contracts (Exhibit and/or each Special Servicer, in each case
No. 10 of Item 601 of to the extent of any contract that
Regulation S-K) satisfies all the following conditions:
(a) such contract relates to the Trust or
one or more Mortgage Loans or REO Mortgage
Loans, and (b) such contract is a contract
to which such party (or a subcontractor or
vendor engaged by such party) is a party
or that such party (or a subcontractor or
vendor engaged by such party) has caused
to have been executed on behalf of the
Trust.
Item 9: Exhibits (no. 22): o The applicable party that is the "Party
Responsible" with respect to Item 5 as set
Published Report Regarding forth above.
Matters Submitted to a Vote of
Security Holders (Exhibit No.
22 of Item 601 of Regulation
S-K), but only if the party
that is the "Party
Responsible" with respect to
Item 5 above elects to publish
a report containing the
information required by such
Item 5 above and also elects
to report the information on
Form 10-D by means of filing
the published report and
answering Item 5 by
referencing the published
report.
Item 9: Exhibits (no. 23): o Depositor
Consents of Experts and
Counsel (Exhibit No. 23(ii) of
Item 601 of Regulation S-K),
where the filing of a written
consent is required with
respect to material (in the
Form 10-D) that is
incorporated by reference in
the Depositor's registration
statement.
Item 9: Exhibits (no. 24) o Trustee
Power of Attorney (Exhibit No.
24 of Item 601 of Regulation
S-K), but only if the name of
any party signing the Form
10-D, or the name of any
officer signing the Form 10-D
on behalf of a party, is
signed pursuant to a power of
attorney.
Item 9: Exhibits (no. 99) o Not Applicable.
S-IX-4
Additional exhibits (Exhibit
No. 99 of Item 601 of
Regulation S-K)
Item 9: Exhibits (no. 100) o Not Applicable.
XBRL-Related Documents
(Exhibit No. 100 of Item 601
of Regulation S-K).
Item 9: Exhibits (By Operation o Certificate Administrator, Depositor and
of Item 8 Above), but only to Trustee, in each case only to the extent
the extent of any document that such party is the "Party Responsible"
that meets all the following for the exhibit pursuant to Item 9(d) of
conditions: (a) such document Schedule X (it being acknowledged that
constitutes "Additional Form none of the Master Servicers, the Primary
8-K Disclosure" pursuant to Servicers or the Special Servicers
Item 9.01(d) of Schedule XI, constitutes a "Party Responsible" under
(b) such document is required Schedule XI with respect to any exhibits
to be reported as "Additional to a Form 10-K)I.
Form 8-K Disclosure" during
the period to which the Form
10-D relates, and (c) such
document was not previously
reported as "Additional Form
8-K Disclosure".
S-IX-5
SCHEDULE X
ADDITIONAL FORM 10-K DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.07 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Certificate Administrator 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, annual
operating statements, budgets and/or rent rolls required to be provided in
connection with 1112(b) below, possession) of such information (other than
information as to itself). Each of the Certificate Administrator, the Trustee,
each Master Servicer, each Primary Servicer and each 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 Pooled Mortgage Loan Seller. Each of the
Certificate Administrator, the Trustee, each Master Servicer, each Primary
Servicer and each Special Servicer (in its capacity as such) shall be entitled
to assume that there is no "significant obligor" other than a party or property
identified as such in the Prospectus Supplement and to assume that no other
party or property will constitute a "significant obligor" after the Cut-off
Date. In no event shall a Master Servicer, Primary Servicer or Special Servicer
be required to provide any information for inclusion in a Form 10-K that relates
to any Mortgage Loan for which such Master Servicer, Primary Servicer or Special
Servicer is not the applicable Master Servicer, Primary Servicer or Special
Servicer, as the case may be. For this Series 2006-PWR12 Pooling and Servicing
Agreement, each of the Certificate Administrator, the Trustee, each Master
Servicer, each Primary Servicer and each 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.
ITEM ON FORM 10-K PARTY RESPONSIBLE
------------------------------ -----------------------------------------------
Item 1B: Unresolved Staff o Depositor
Comments
Item 9B: Other Information, o Certificate Administrator, Trustee, each
but only to the extent of any Master Servicer, each Primary Servicer
information that meets all the and/or each Special Servicer, in each case
following conditions: to the extent that such party is the
"Party Responsible" with respect to such
information pursuant to Schedule XI.
(a) such information
constitutes "Additional
Form 8-K Disclosure"
pursuant to Schedule XI,
(b) such information is
required to be reported
as "Additional Form 8-K
Disclosure" during the
period to which the Form
10-K relates, and
(c) such information was
not
S-X-1
previously reported as
"Additional Form 8-K
Disclosure" or as
"Additional Form 10-D
Disclosure"
Item 15: Exhibits, Financial SEE BELOW
Statement Schedules (SEE
BELOW)
Instruction J(2)(b) o The applicable Pooled Mortgage Loan
(Significant Obligors of Pool Seller.
Assets) - Part 1 of 3 Parts:
o Item 1112(b) of
Regulation AB, but
only to the extent
that (i) such
information was
required to have
been set forth in
the Prospectus
Supplement, (ii)
such information was
not so set forth and
(iii) the applicable
Master Servicer or
applicable Primary
Servicer has not
previously reported
such information as
"Additional Form
10-D Information".
Instruction J(2)(b) o The Depositor
(Significant Obligors of Pool
Assets) - Part 2 of 3 Parts:
o Item 1112(b) of
Regulation AB, but
only to the extent
that (i) such
information was set
forth in the
Prospectus
Supplement and (ii)
the applicable
Master Servicer or
applicable Primary
Servicer has not
previously reported
such information or
updated versions
thereof as
"Additional Form
10-D Information".
Instruction J(2)(b) o Each Master Servicer (as to Mortgage Loans
(Significant Obligors of Pool for which it is the applicable Master
Assets) - Part 3 of 3 Parts: Servicer and excluding information for
which the applicable Primary Servicer or
o Item 1112(b) of the applicable Special Servicer is the
Regulation AB; "Party Responsible")
provided, however,
that all of the o Each Primary Servicer (as to Mortgage
following conditions Loans for which it is the applicable
shall apply: Primary Servicer)
(a) information o Each Special Servicer (as to REO
shall be required to Properties for which it is the applicable
be reported only Special Servicer)
with respect to a
party or property
(if any) identified
as a "significant
obligor" in the
Prospectus
Supplement;
(b) the information
to be reported
S-X-2
shall consist of
such quarterly and
annual operating
statements, budgets
and rent rolls of
the related
Mortgaged Property
or REO Property (as
applicable), and
quarterly and annual
financial statements
of the related
Borrower (except in
the case of an REO
Property), received
or prepared by the
"Party Responsible"
pursuant to its
obligations under
Section 3.12(b) of
this Pooling and
Servicing Agreement
(or, if the "Party
Responsible" is a
Primary Servicer,
pursuant to the
similar obligations
of such Primary
Servicer under the
related Primary
Servicing
Agreement); and
(c) the information
shall be reportable
only to the extent
that is has not
previously been
reported as
"Additional Form
10-D Information".
Instruction J(2)(c)
(Significant Enhancement
Provider Information):
o Depositor
o Items 1114(b)(2) and
1115(b) of o Trustee
Regulation AB
Instruction J(2)(d) (Legal o Each Master Servicer (as to itself)
Proceedings):
o Each Special Servicer (as to itself)
o Item 1117 of
Regulation AB o Certificate Administrator (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/Certificate Administrator/Master
Servicer/Depositor/Special Servicer as to
the Trust
S-X-3
o Each Pooled Mortgage Loan 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
Instruction J(2)(e) o Each Master Servicer
(Affiliations and Certain
Relationships and Related o Each Special Servicer
Transactions) - Part 1 of 2
Parts: o Certificate Administrator
1119(a) of Regulation AB, o Trustee
but only the existence o Each Primary Servicer
and (if existent) how
there is (that is, the o Each party (other than a Pooled Mortgage
nature of) any Loan Seller), if any, that is identified
affiliation between in the Prospectus Supplement as an
itself (that is, the "originator" of one or more Pooled
particular "Party Mortgage Loans, if the Prospectus
Responsible"), on the one Supplement specifically states that the
hand, and any one or more applicable Pooled Mortgage Loans were 10%
of the following, on the or more of the assets of the Trust at the
other: (1) the Depositor, date of the Prospectus Supplement
(2) any Pooled Mortgage (provided that such a party shall no
Loan Seller, (3) the longer constitute a "Party Responsible"
Trust and (4) any other under this item from and after the date
party listed under this (if any) when the Depositor notifies the
item as a "Party parties to this Agreement and the Primary
Responsible"; provided, Servicers to the effect that such party no
however, that an longer constitutes an originator of 10% or
affiliation need not be more of the assets of the Trust).
disclosed for purposes of
the applicable Form 10-K o Each party (other than a Pooled Mortgage
if it was disclosed in Loan Seller), if any, that is specifically
the Prospectus Supplement identified as an "originator of 10% or
or if it was previously more of the assets of the Trust for
reported as "Additional purposes of Regulation AB and the upcoming
Form 10-K Disclosure". Form 10-K" in a written notice delivered
to the parties to this Pooling and
Servicing Agreement and to the Primary
and Servicers, which notice is delivered not
later than February 15 of the year in
which the Form 10-K is due.
o 1119(b) of
Regulation AB, o Each party (if any) that is identified in
the Prospectus Supplement as an "other
but only the existence material party to the securities or
and (if existent) the transaction" (or substantially similar
general character of any phrasing); provided, however, that such a
business relationship, party shall no longer constitute a "Party
agreement, arrangement, Responsible" under this
transaction or
understanding that is
entered into outside the
ordinary course of
business or is on terms
other than would be
obtained in an arm's
length transaction with
an unrelated third party
(apart from the Series
2006-PWR12 transaction)
between itself (that is,
the particular "Party
Responsible") or any of
S-X-4
its affiliates, on the item from and after the date (if any) when
one hand, and any one or the Depositor notifies the parties to this
more of the following, on Agreement and the Primary Servicers to the
the other: (1) the effect that such party no longer
Depositor, (2) any Pooled constitutes a material party for purposes
Mortgage Loan Seller, and of Regulation AB.
(3) the Trust; provided,
however, that a o Each party (if any) that that is
relationship, agreement, specifically identified as an "other
arrangement, transaction material party to the securities or
or understanding (A) must be transaction for purposes of Regulation AB
reported only if it then and the upcoming Form 10-K" (or
exists or existed within substantially similar phrasing) in a
the two prior years, (B) written notice delivered by the Depositor
need not be reported if to the parties to this Pooling and
it is not material to an Servicing Agreement and to the Primary
investor's understanding Servicers, which notice is delivered not
of the Certificates and later than February 15 of the year in
(C) need not be disclosed which the Form 10-K is due.
for purposes of the
applicable Form 10-K if
it was disclosed in the
Prospectus Supplement or
if it was previously
reported as "Additional
Form 10-K Disclosure".
and
o 1119(c) of
Regulation AB,
but only the existence
and (if existent) a
description (including
the terms and approximate
dollar amount) of any
specific relationship
involving or related to
the Series 2006-PWR12
transaction or the Pooled
Mortgage Loans between
itself (that is, the
particular "Party
Responsible") or any of
its affiliates, on the
one hand, and any one or
more of the following, on
the other: (1) the
Depositor, (2) any Pooled
Mortgage Loan Seller, and
(3) the Trust; provided,
however, that a
relationship (A) must be
reported only if it then
exists or existed within
the two prior years, (B)
need not be reported if
it is not material to an
investor's understanding
of the Certificates and
(C) need not be disclosed
for purposes of the
applicable Form 10-K if
it was disclosed in the
Prospectus Supplement or
if it was previously
reported as "Additional
Form 10-K Disclosure".
Instruction J(2)(e) o The Depositor
(Affiliations and Certain
Relationships and Related o Each Pooled Mortgage Loan Seller
Transactions) -
S-X-5
Part 2 of 2 Parts:
1119(a) of Regulation AB,
But only the existence
and (if existent) how
there is any affiliation
between itself (that is,
the particular "Party
Responsible"), on the one
hand, and any one or more
of the parties listed
under the preceding item
as a "Party Responsible",
on the other; provided,
however, that an
affiliation need not be
disclosed for purposes of
the applicable Form 10-K
if it was disclosed in
the Prospectus Supplement
or if it was previously
reported as "Additional
Form 10-K Disclosure".
and
o 1119(b) of
Regulation AB,
but only the existence
and (if existent) the
general character of any
business relationship,
agreement, arrangement,
transaction or
understanding that is
entered into outside the
ordinary course of
business or is on terms
other than would be
obtained in an arm's
length transaction with
an unrelated third party
(apart from the Series
2006-PWR12 transaction)
between itself (that is,
the particular "Party
Responsible"), on the one
hand, and any one or more
of the parties listed
under the preceding item
as a "Party Responsible",
on the other; provided,
however, that a
relationship, agreement,
arrangement, transaction
or understanding (A) must
be reported only if it
then exists or existed
within the two prior
years, (B) need not be
reported if it is not
material to an investor's
understanding of the
Certificates and (C) need
not be disclosed for
purposes of the
applicable Form 10-K if
it was disclosed in the
Prospectus Supplement or
if it was
S-X-6
previously reported as
"Additional Form 10-K
Disclosure".
and
o 1119(c) of
Regulation AB,
but only the existence
and (if existent) a
description (including
the terms and approximate
dollar amount) of any
specific relationship
involving or related to
the Series 2006-PWR12
transaction or the Pooled
Mortgage Loans between
itself (that is, the
particular "Party
Responsible") or any of
its affiliates, on the
one hand, and any one or
more of the parties
listed under the
preceding item as a
"Party Responsible", on
the other; provided,
however, that a
relationship (A) must be
reported only if it then
exists or existed within
the two prior years, (B)
need not be reported if
it is not material to an
investor's understanding
of the Certificates and
(C) need not be disclosed
for purposes of the
applicable Form 10-K if
it was disclosed in the
Prospectus Supplement or
if it was previously
reported as "Additional
Form 10-K Disclosure".
Item 15: Exhibits (no. 2): o Depositor
Plan of acquisition,
reorganization, arrangement,
liquidation or succession
(Exhibit No. 2 of Item 601 of
Regulation S-K)
Item 15: Exhibits (no. 3): o Depositor
Articles of incorporation and
by-laws (Exhibit No. 3(i) and
3(ii) of Item 601 of
Regulation S-K)
Item 15: Exhibits (no. 4): o Trustee
With respect to instruments o Certificate Administrator
defining the rights of
security holders (Exhibit No. provided, in each case, that this shall in no
4 of Item 601 of Regulation event be construed to make such party
S-K)
S-X-7
responsible for the initial filing of this
Pooling and Servicing Agreement
Item 15: Exhibits (no. 10): o Certificate Administrator, Trustee, each
Master Servicer, each Primary Servicer
Material contracts (Exhibit and/or each Special Servicer, in each case
No. 10 of Item 601 of to the extent of any contract that
Regulation S-K) satisfies all the following conditions:
(a) such contract relates to the Trust or
one or more Mortgage Loans or REO Mortgage
Loans, and (b) such contract is a contract
to which such party (or a subcontractor or
vendor engaged by such party) is a party
or that such party (or a subcontractor or
vendor engaged by such party) has caused
to have been executed on behalf of the
Trust.
Item 15: Exhibits (no. 11): o Not Applicable
Statement regarding
computation of per share
earnings (Exhibit No. 11 of
Item 601 of Regulation S-K)
Item 15: Exhibits (no. 12): o Not Applicable
Statement regarding
computation of ratios (Exhibit
No. 12 of Item 601 of
Regulation S-K)
Item 15: Exhibits (no. 13): o Not Applicable
Annual report to security
holders, Form 10-Q and Form
10-QSB, or quarterly report to
security holders (Exhibit No.
13 of Item 601 of Regulation
S-K)
Item 15: Exhibits (no. 14): o Not Applicable
Code of Ethics (Exhibit No. 14
of Item 601 of Regulation S-K)
Item 15: Exhibits (no. 16): o Not Applicable
Letter re change in certifying
accountant (Exhibit No. 16 of
Item 601 of Regulation S-K)
Item 15: Exhibits (no. 18): o Not Applicable
Letter re change in accounting
principles (Exhibit No. 18 of
Item 601 of Regulation S-K)
Item 15: Exhibits (no. 21): o Depositor.
Subsidiaries of registrant
(Exhibit No. 18 of Item 601 of
Regulation S-K)
Item 15: Exhibits (no. 22): o Not Applicable
S-X-8
Published Report Regarding
Matters Submitted to a Vote of
Security Holders (Exhibit No.
22 of Item 601 of Regulation
S-K).
Item 15: Exhibits (no. 23) - o Depositor.
Part 1 of 2 Parts:
Consents of Experts and
Counsel (Exhibit No. 23(ii) of
Item 601 of Regulation S-K),
where (a) the filing of a
written consent is required
with respect to material (in
the Form 10-D) that is
incorporated by reference in
the Depositor's registration
statement and (b) the consent
is not the consent of a
registered public accounting
firm in connection with an
attestation delivered pursuant
to Section 11.13 of this
Pooling and Servicing
Agreement.
Item 15: Exhibits (no. 23) - o Each Master Servicer
Part 2 of 2 Parts:
o Each Special Servicer
Consents of Experts and
Counsel (Exhibit No. 23(ii) of o Certificate Administrator
Item 601 of Regulation S-K),
but the required shall consist o Trustee
of a consent of the registered
public accounting firm for o Depositor
purposes of any attestation
report rendered with respect o Each Primary Servicer
to the particular "Party
Responsible" pursuant to o Any other Servicing Function Participant
Section 11.13 of this Pooling
and Servicing Agreement. provided, however, in each case, that such
party shall have the duty to report or deliver,
or cause the reporting or delivery, of such
consent only to the extent that such party is
required to deliver or cause the delivery of
the related attestation report.
Item 15: Exhibits (no. 24) o Trustee
Power of Attorney (Exhibit No.
24 of Item 601 of Regulation
S-K), but only if the name of
any party signing the Form
10-D, or the name of any
officer signing the Form 10-D
on behalf of a party, is
signed pursuant to a power of
attorney.
Item 15: Exhibits (no. 31(i)) o Not Applicable
Rule 13a-14(a)/15d-14(a)
Certifications (Exhibit No.
31(i) of Item 601 of
Regulation S-K).
Item 15: Exhibits (no. 31(ii)) o Delivery of this exhibit (Sarbanes-Oxley
certification and backup certifications)
Rule 13a-14(d)/15d-14(d) is governed by Section 11.08 (and Section
Certifications
S-X-9
(Exhibit No. 31(ii) of Item 11.07) of this Pooling and Servicing
601 of Regulation S-K). Agreement.
Item 15: Exhibits (no. 32) o Not Applicable.
Section 1350 Certifications
(Exhibit No. 32 of Item 601 of
Regulation S-K).
Item 15: Exhibits (no. 33) o Delivery of this exhibit (annual
compliance assessment) is governed by
Report on assessment of Section 11.12 (and Section 11.07) of this
compliance with servicing Pooling and Servicing Agreement.
criteria for asset-backed
securities (Exhibit No. 33 of
Item 601 of Regulation S-K).
Item 15: Exhibits (no. 34) o Delivery of this exhibit (annual
accountants' attestation report) is
Attestation report on governed by Section 11.13 (and Section
assessment of compliance with 11.07) of this Pooling and Servicing
servicing criteria for Agreement.
asset-backed securities
(Exhibit No. 34 of Item 601 of
Regulation S-K).
Item 15: Exhibits (no. 35) o Delivery of this exhibit (annual servicer
compliance statements) is governed by
Servicer compliance statement Section 11.11 (and Section 11.07) of this
(Exhibit No. 35 of Item 601 of Pooling and Servicing Agreement.
Regulation S-K).
Item 15: Exhibits (no. 99) o Not Applicable.
Additional exhibits (Exhibit
No. 99 of Item 601 of
Regulation S-K)
Item 15: Exhibits (no. 100) o Not Applicable.
XBRL-Related Documents
(Exhibit No. 100 of Item 601
of Regulation S-K).
Item 15: Exhibits (By o Certificate Administrator, Depositor and
Operation of Item 9B Above), Trustee, in each case only to the extent
but only to the extent of any that such party is the "Party Responsible"
document that meets all the for the exhibit pursuant to Item 9(d) of
following conditions: (a) such Schedule XI (it being acknowledged that
document constitutes none of the Master Servicers, the Primary
"Additional Form 8-K Servicers or the Special Servicers
Disclosure" pursuant to Item constitutes a "Party Responsible" under
9.01(d) of Schedule XI, (b) Schedule XI with respect to any exhibits
such document is required to to a Form 10-K).
be reported as "Additional
Form 8-K Disclosure" during
the period to which the Form
10-K relates, and (c) such
document was not previously
reported as "Additional Form
8-K Disclosure".
S-X-10
SCHEDULE XI
FORM 8-K DISCLOSURE INFORMATION
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.09 of the Pooling and Servicing Agreement to report to the
Depositor and the Certificate Administrator 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 Certificate Administrator, the Trustee,
each Master Servicer, each Primary Servicer and each 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 Pooled Mortgage Loan Seller. Each of the
Certificate Administrator, the Trustee, each Master Servicer, each Primary
Servicer and each Special Servicer (in its capacity as such) shall be entitled
to assume that there is no "significant obligor" other than a party or property
identified as such in the Prospectus Supplement and to assume that no other
party or property will constitute a "significant obligor" after the Cut-off
Date. In no event shall a Master Servicer, Primary Servicer or Special Servicer
be required to provide any information for inclusion in a Form 8-K that relates
to any Mortgage Loan for which such Master Servicer, Primary Servicer or Special
Servicer is not the applicable Master Servicer, Primary Servicer or Special
Servicer, as the case may be. For this Series 2006-PWR12 Pooling and Servicing
Agreement, each of the Certificate Administrator, the Trustee, each Master
Servicer, each Primary Servicer and each 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.
ITEM ON FORM 8-K PARTY RESPONSIBLE
------------------------------ -----------------------------------------------
Item 1.01: Entry into a o Depositor (it being acknowledged that Item
Material Definitive Agreement 601 of Regulation S-K only requires filing
of contracts to which the registrant or a
subsidiary thereof is a party).
Item 1.02: Termination of a o Certificate Administrator, Trustee, each
Material Definitive Agreement- Master Servicer, each Primary Servicer
Part 1 of 2 Parts and/or each Special Servicer, in each case
to the extent of any contract that
satisfies all the following conditions:
(a) such contract relates to the Trust or
one or more Mortgage Loans or REO Mortgage
Loans, and (b) such contract is a contract
to which such party (or a subcontractor or
vendor engaged by such party) is a party
or that such party (or a subcontractor or
vendor engaged by such party) has
S-XI-1
caused to have been executed on behalf of
the Trust; provided, however, that the
Certificate Administrator shall be the
"Party Responsible" in connection with any
amendment to this Pooling and Servicing
Agreement.
Item 1.02: Termination of a o Depositor, to the extent of any material
Material Definitive Agreement- agreement not covered in the prior item
Part 2 of 2 Parts
Item 1.03: Bankruptcy or o Depositor
Receivership
Item 2.04: Triggering Events o Trustee
that Accelerate or Increase a
Direct Financial Obligation or
an Obligation under an
Off-Balance Sheet Arrangement
Item 3.03: Material o Certificate Administrator
Modification to Rights of
Security Holders o Trustee
Item 5.03: Amendments of o Depositor
Articles of Incorporation or
Bylaws; Change of Fiscal Year
Item 6.01: ABS Informational o Depositor
and Computational Material
Item 6.02 (Part 1 of 3 Parts): o Trustee
Change of Servicer or Trustee, o Depositor
but only to the extent related
to a change in trustee
Item 6.02 (Part 2 of 3 Parts): o Certificate Administrator
Change of Servicer or Trustee, o The applicable Master Servicer, the
but only to the extent related applicable Special Servicer or the
to a change in Master applicable Primary Servicer, as the case
Servicer, Special Servicer or may be
Primary Servicer
Item 6.02 (Part 3 of 3 Parts): o Each Master Servicer
Change of Servicer or Trustee, o Each Special Servicer
but only to the extent related o Each Primary Servicer
to a servicer (other than a o Certificate Administrator
party to the Pooling and o Trustee
Servicing Agreement or to a o Depositor
Primary Servicing Agreement)
appointed by the particular
"Party Responsible".
Item 6.03: Change in Credit o Depositor
Enhancement or External o Certificate Administrator
Support
Item 6.04: Failure to Make a o Certificate Administrator
Required Distribution
Item 6.05: Securities Act o Depositor
Updating Disclosure
Item 7.01: Regulation FD o Depositor
Disclosure
Item 8.01: Other Events o Depositor
Item 9.01(d): Exhibits o Not applicable
(no. 1):
S-XI-2
Underwriting agreement
(Exhibit No. 1 of Item 601 of
Regulation S-K)
Item 9.01(d): Exhibits o Depositor
(no. 2):
Plan of acquisition,
reorganization, arrangement,
liquidation or succession
(Exhibit No. 2 of Item 601 of
Regulation S-K)
Item 9.01(d): Exhibits o Depositor
(no. 3):
Articles of incorporation and
by-laws (Exhibit No. 3(i) and
3(ii) of Item 601 of
Regulation S-K)
Item 9.01(d): Exhibits o Trustee
(no. 4): o Certificate Administrator
With respect to instruments provided, in each case, that this shall in no
defining the rights of event be construed to make such party
security holders (Exhibit No. responsible for the initial filing of this
4 of Item 601 of Regulation Pooling and Servicing Agreement
S-K)
Item 9.01(d): Exhibits o Not Applicable
(no. 7):
Correspondence from an
independent accountant
regarding non-reliance on a
previously issued audit report
or completed interim review.
(Exhibit No. 7 of Item 601 of
Regulation S-K)
Item 9.01(d): Exhibits o Not Applicable
(no. 14):
Code of Ethics (Exhibit No. 14
of Item 601 of Regulation S-K)
Item 9.01(d): Exhibits o Not Applicable
(no. 16):
Letter re change in certifying
accountant (Exhibit No. 16 of
Item 601 of Regulation S-K)
Item 9.01(d): Exhibits o Not Applicable
(no. 17):
Correspondence on departure of
director (Exhibit No. 17 of
Item 601 of Regulation S-K)
Item 9.01(d): Exhibits o Not Applicable
(no. 20):
Other documents or statements
to security holders (Exhibit
No. 20 of Item 601 of
Regulation S-K)
Item 9.01(d): Exhibits o Depositor
(no. 23):
Consents of Experts and
Counsel (Exhibit No.
S-XI-3
23(ii) of Item 601 of
Regulation S-K), where the
filing of a written consent is
required with respect to
material (in the Form 10-D)
that is incorporated by
reference in the Depositor's
registration statement.
Item 9.01(d): Exhibits o Trustee
(no. 24)
Power of Attorney (Exhibit No.
24 of Item 601 of Regulation
S-K), but only if the name of
any party signing the Form
10-D, or the name of any
officer signing the Form 10-D
on behalf of a party, is
signed pursuant to a power of
attorney.
Item 15: Exhibits (no. 99) o Not Applicable.
Additional exhibits (Exhibit
No. 99 of Item 601 of
Regulation S-K)
Item 15: Exhibits (no. 100) o Not Applicable.
XBRL-Related Documents
(Exhibit No. 100 of Item 601
of Regulation S-K).
S-XI-4
