EXHIBIT 4.1
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
and
MIDLAND LOAN SERVICES, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2006
-----------------------------
$ 2,141,833,151 (approximate)
ML-CFC Commercial Mortgage Trust 2006-1
Commercial Mortgage Pass-Through Certificates
Series 2006-1
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................................................4
SECTION 1.02. Certain Adjustments to the Principal Distributions on the Certificates........................84
SECTION 1.03. Calculation of LIBOR..........................................................................86
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Trust Mortgage Loans............................................................88
SECTION 2.02. Acceptance of the Trust Fund by Trustee.......................................................90
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of Trust Mortgage Loans for Document
Defects and Breaches of Representations and Warranties......................................92
SECTION 2.04. Representations and Warranties of Depositor...................................................96
SECTION 2.05. Acceptance of REMIC I and Grantor Trusts by Trustee...........................................97
SECTION 2.06. Execution, Authentication and Delivery of Class R-I Certificates; Issuance of REMIC I
Regular Interests...........................................................................97
SECTION 2.07. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee....................97
SECTION 2.08. Execution, Authentication and Delivery of REMIC II Certificates...............................97
SECTION 2.09. Conveyance of Class A-3FL REMIC II Regular Interest and Class AN-FL REMIC II Regular
Interest; Acceptance of Grantor Trust A-3FL and Grantor Trust AN-FL by Trustee..............98
SECTION 2.10. Execution, Authentication and Delivery of Class Z, Class A-3FL and Class AN-FL
Certificates................................................................................98
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans..........................................................99
SECTION 3.02. Collection of Mortgage Loan Payments.........................................................101
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts...................................................................................103
SECTION 3.04. Collection Account, Interest Reserve Account, Additional Interest Account,
Distribution Account, Gain-on-Sale Reserve Account, Floating Rate Account and Loan
Combination Custodial Accounts.............................................................109
SECTION 3.05. Permitted Withdrawals From the Collection Account, the Interest Reserve Account, the
Additional Interest Account, the Floating Rate Account, the Distribution Account and
the Loan Combination Custodial Accounts....................................................115
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the Collection
Account, the Distribution Account, the Floating Rate Account, the Loan Combination
Custodial Accounts, the Additional Interest Account, the Gain-on-Sale Reserve
Account and the REO Accounts...............................................................125
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage................127
SECTION 3.08. Enforcement of Alienation Clauses............................................................131
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals...............................133
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files................................138
SECTION 3.11. Servicing Compensation.......................................................................139
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports........143
SECTION 3.13. Annual Statement as to Compliance............................................................147
SECTION 3.14. Reports on Assessment of Compliance with Servicing Criteria; Registered Public
Accounting Firm Attestation Reports........................................................148
SECTION 3.15. Access to Certain Information................................................................150
SECTION 3.16. Title to REO Property; REO Accounts..........................................................153
SECTION 3.17. Management of REO Property...................................................................155
SECTION 3.18. Resolution of Defaulted Mortgage Loans and REO Properties....................................158
SECTION 3.19. Additional Obligations of Master Servicer....................................................164
SECTION 3.20. Modifications, Waivers, Amendments and Consents..............................................165
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping...........171
SECTION 3.22. Sub-Servicing Agreements.....................................................................174
SECTION 3.23. Representations and Warranties of Master Servicer and Special Servicer.......................177
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty..........................................179
SECTION 3.25. Designation of Controlling Class Representative..............................................180
SECTION 3.26. Application of Default Charges...............................................................181
SECTION 3.27. Controlling Class Representative Contact with Servicer.......................................182
SECTION 3.28. Certain Matters Regarding the Loan Combinations..............................................183
SECTION 3.29. The Swap Agreements..........................................................................184
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................................................188
SECTION 4.02. Statements to Certificateholders.............................................................202
SECTION 4.03. P&I Advances; Reimbursement of P&I Advances and Servicing Advances...........................207
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses.............................211
SECTION 4.05. Calculations.................................................................................212
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................................................214
SECTION 5.02. Registration of Transfer and Exchange of Certificates........................................214
SECTION 5.03. Book-Entry Certificates......................................................................222
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................................223
SECTION 5.05. Persons Deemed Owners........................................................................223
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.................................225
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master Servicer or Special
Servicer...................................................................................225
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer
and Others.................................................................................225
SECTION 6.04. Resignation of Master Servicer and the Special Servicer......................................228
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer and the Special Servicer.......229
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee....................229
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer....................229
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer....................230
SECTION 6.09. Designation of Special Servicer by the Controlling Class.....................................230
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate................................231
SECTION 6.11. The Controlling Class Representative.........................................................231
SECTION 6.12. Certain Matters with Respect to the Kenwood Towne Centre Loan Combination and the 00
Xxxxx Xxxxxx Loan Combination..............................................................234
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default............................................................................236
SECTION 7.02. Trustee to Act; Appointment of Successor.....................................................239
SECTION 7.03. Notification to Certificateholders...........................................................240
SECTION 7.04. Waiver of Events of Default..................................................................241
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.........................................241
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01. Duties of Trustee............................................................................242
SECTION 8.02. Certain Matters Affecting Trustee............................................................243
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans.............................................................................244
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................................245
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.....................................245
SECTION 8.06. Eligibility Requirements for Trustee.........................................................246
SECTION 8.07. Resignation and Removal of Trustee...........................................................246
SECTION 8.08. Successor Trustee............................................................................247
SECTION 8.09. Merger or Consolidation of Trustee...........................................................248
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................................248
SECTION 8.11. Appointment of Custodians....................................................................249
SECTION 8.12. Appointment of Authenticating Agents.........................................................250
SECTION 8.13. Access to Certain Information................................................................251
SECTION 8.14. Appointment of REMIC Administrators..........................................................251
SECTION 8.15. Representations, Warranties and Covenants of Trustee.........................................252
SECTION 8.16. Reports to the Commission....................................................................253
SECTION 8.17. Maintenance of Mortgage File.................................................................259
SECTION 8.18. Appointment of Fiscal Agent..................................................................260
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans.......................262
SECTION 9.02. Additional Termination Requirements..........................................................264
SECTION 9.03. Non-Trust Mortgage Loans.....................................................................265
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.........................................................................266
SECTION 10.02. Grantor Trust Administration.................................................................269
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................................................272
SECTION 11.02. Recordation of Agreement; Counterparts.......................................................274
SECTION 11.03. Limitation on Rights of Certificateholders...................................................274
SECTION 11.04. Governing Law; Waiver of Trial By Jury.......................................................275
SECTION 11.05. Notices......................................................................................275
SECTION 11.06. Severability of Provisions...................................................................277
SECTION 11.07. Grant of a Security Interest.................................................................277
SECTION 11.08. Xxxxxx Act...................................................................................277
SECTION 11.09. Successors and Assigns; Beneficiaries........................................................278
SECTION 11.10. Article and Section Headings.................................................................278
SECTION 11.11. Notices to Rating Agencies...................................................................278
SECTION 11.12. Complete Agreement...........................................................................280
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
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Schedule I Mortgage Loan Schedule
Schedule II List of Mortgage Loans with Secured Creditor Environmental Insurance Policies
Schedule III [RESERVED]
Schedule IV Class A-SB Planned Principal Balances
Schedule V Sub-Servicers as to Which Sub-Servicing Agreements Are In Effect on the Closing Date
Schedule VI List of Mortgage Loans Requiring Operations and Maintenance Plans
Schedule VII List of Xxxxxxx Trust Mortgage Loans With Late Payment Charges Due Prior to Expiration of Their
Payment Date Grace Periods [None.]
Exhibit No. Exhibit Description
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A-1 Form of Class X-0, X-0, X-0, X-0XX, X-0X, X-XX, X-0 and A-1A Certificates
A-2 [RESERVED]
A-3 Form of Class X Certificate
A-4 Form of Class AM, AJ, B, C and D Certificates
A-5 Form of Class AN-FL, E, F, G and H Certificates
A-6 Form of Class J, K, L, M, N, P and Q Certificates
A-7 Form of Class R-I and R-II Certificates
A-8 Form of Class Z Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E-1 Form of Transferor Certificate for Transfers of Definitive Non-Registered Certificates
(Pursuant to Section 5.02(b))
E-2A Form I of Transferee Certificate for Transfers of Definitive Non-Registered Certificates
(Pursuant to Section 5.02(b))
E-2B Form II of Transferee Certificate for Transfers of Definitive Non-Registered Certificates
(Pursuant to Section 5.02(b))
E-2C Form of Transferee Certificate for Transfers of Interests in Rule 144A Global Certificates
(Pursuant to Section 5.02(b))
E-2D Form of Transferee Certificate for Transfers of Interests in Regulation S Global Certificates
(Pursuant to Section 5.02(b))
F-1 Form I of Transferee Certificate Regarding ERISA Matters
(Definitive Non-Registered Certificates) (Pursuant to Section 5.02(c))
F-2 Form II of Transferee Certificate Regarding ERISA Matters
(Book-Entry Non-Registered Certificates) (Pursuant to Section 5.02(c))
G-1 Form of Transfer Affidavit and Agreement Regarding Residual Certificates
(Pursuant to Section 5.02(d)(i)(4))
G-2 Form of Transferor Certificate for Transfers of Residual Certificates
(Pursuant to Section 5.02(d)(i)(4))
H-1 Form of Notice and Acknowledgment (Regarding Proposed Special Servicer)
H-2 Form of Acknowledgment of Proposed Special Servicer
I-1 Form of Information Request from Certificateholder or Certificate Owner
I-2 Form of Information Request from Prospective Investor
J Form of Exchange Act Reportable Event Notification
K Form of S&P Defeasance Certification
L Relevant Servicing Criteria
M-1 Form of Purchase Option Notice
M-2 Form of Purchase Option Assignment by the Special Servicer
M-3 Form of Purchase Option Assignment by Plurality Subordinate Certificateholder or Controlling Class
Representative
N [RESERVED]
O Form of Xxxxxxxx-Xxxxx Certification by the Depositor
P-1 Form of Certification to be Provided by the Master Servicer to the Depositor
P-2 Form of Certification to be Provided by the Trustee to the Depositor
P-3 Form of Certification to be Provided by the Special Servicer to the Depositor
POOLING AND SERVICING AGREEMENT
This
Pooling and Servicing Agreement is dated and effective as of
March 1, 2006, among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor,
WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, MIDLAND LOAN SERVICES,
INC., as Special Servicer, and LASALLE BANK NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates, to
be issued hereunder in multiple classes, which in the aggregate will evidence
the entire beneficial ownership interest in a trust fund to be created
hereunder, the primary assets of which will be the Trust Mortgage Loans.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Trust Mortgage Loans (exclusive of that
portion of the interest payments on the Trust Mortgage Loans that constitutes
Additional Interest) and certain other related assets subject to this Agreement
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC I". The Class R-I Certificates will evidence the
sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions under federal income tax law. For federal income tax purposes, each
REMIC I Regular Interest will be designated as a separate "regular interest" in
REMIC I for purposes of the REMIC Provisions under federal income tax law. None
of the REMIC I Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all 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-II Certificates will evidence the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
Regular Certificates (or, in the case of the Class X Certificates, each Class X
Component thereof), the Class A-3FL REMIC II Regular Interest and the Class A-4L
REMIC II Regular Interest, will be designated as a separate "regular interest"
in REMIC II for purposes of the REMIC Provisions under federal income tax law.
The following table sets forth: (i) the class designation of each
Class of Sequential Pay Certificates; (ii) the Original Class Principal Balance
for each Class of Sequential Pay Certificates; (iii) the corresponding REMIC I
Regular Interest (the "Corresponding REMIC I Regular Interest") for each Class
of Sequential Pay Certificates; and (iv) the initial REMIC I Principal Balance
of each such Corresponding REMIC I Regular Interest.
--------------------------------------------------------------------------------
Corresponding
Class Original Class REMIC I Initial REMIC I
Designation Principal Balance Regular Interest Principal Balance
--------------------------------------------------------------------------------
Class A-1 $ 65,000,000 LA-1 $ 65,000,000
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Class A-2 $ 337,500,000 LA-2 $ 337,500,000
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Class A-3 $ 66,150,000 LA-3 $ 66,150,000
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Class A-3FL(1) $ 105,150,000 LA-3FL $ 105,150,000
--------------------------------------------------------------------------------
Class A-3B $ 75,000,000 LA-3B $ 75,000,000
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Class A-SB $ 121,000,000 LA-SB $ 121,000,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Corresponding
Class Original Class REMIC I Initial REMIC I
Designation Principal Balance Regular Interest Principal Balance
--------------------------------------------------------------------------------
Class A-4 $ 489,483,000 LA-4 $ 489,483,000
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Class A-1A $ 240,000,000 LA-1A $ 240,000,000
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Class AM $ 214,183,000 XXX $ 214,183,000
--------------------------------------------------------------------------------
Class AJ $ 82,056,000 LAJ $ 82,056,000
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Class AN-FL(2) $ 100,000,000 LAN-FL $ 100,000,000
--------------------------------------------------------------------------------
Class B $ 50,868,000 LB $ 50,868,000
--------------------------------------------------------------------------------
Class C $ 21,419,000 LC $ 21,419,000
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Class D $ 29,450,000 LD $ 29,450,000
--------------------------------------------------------------------------------
Class E $ 16,064,000 LE $ 16,064,000
--------------------------------------------------------------------------------
Class F $ 24,095,000 LF $ 24,095,000
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Class G $ 16,064,000 LG $ 16,064,000
--------------------------------------------------------------------------------
Class H $ 26,773,000 LH $ 26,773,000
--------------------------------------------------------------------------------
Class J $ 5,354,000 LJ $ 5,354,000
--------------------------------------------------------------------------------
Class K $ 5,355,000 LK $ 5,355,000
--------------------------------------------------------------------------------
Class L $ 8,032,000 LL $ 8,032,000
--------------------------------------------------------------------------------
Class M $ 2,677,000 LM $ 2,677,000
--------------------------------------------------------------------------------
Class N $ 8,032,000 LN $ 8,032,000
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Class P $ 5,355,000 LP $ 5,355,000
--------------------------------------------------------------------------------
Class Q $ 26,773,151 LQ $ 26,773,151
--------------------------------------------------------------------------------
__________________
(1) The Class A-3FL REMIC II Regular Interest will have the same designation,
Original Class Principal Balance and Corresponding REMIC I Regular
Interest as the Class A-3FL Certificates.
(2) The Class AN-FL REMIC II Regular Interest will have the same designation,
Original Class Principal Balance and Corresponding REMIC I Regular
Interest as the Class AN-FL Certificates.
There exist three (3) A-Note Trust Mortgage Loans, each of which is
part of a group of loans comprised of that A-Note Trust Mortgage Loan and
another mortgage loan, namely the related B-Note Non-Trust Loan, that are both
secured by the same Mortgage encumbering the related Mortgaged Property. Each
A-Note Trust Mortgage Loan and the related B-Note Non-Trust Loan collectively
constitute a Loan Combination. The relative rights of the holder of an A-Note
Trust Mortgage Loan and the holder of the related B-Note Non-Trust Loan are set
forth in the related Loan Combination Intercreditor Agreement. As and to the
extent provided in the related Loan Combination Intercreditor Agreement, each
B-Note Non-Trust Loan is subordinate in right of payment and in other respects
to the related A-Note Trust Mortgage Loan.
-2-
As and to the extent provided herein, the Non-Trust Loans, although
not part of the Trust Fund, will be serviced and administered in accordance with
this Agreement by the Master Servicer and the Special Servicer.
The portion of the Trust Fund consisting of (i) the Class A-3FL
REMIC II Regular Interest (and distributions thereon), the Class A-3FL Swap
Agreement (and payments by the Class A-3FL Swap Counterparty thereunder) and the
applicable sub-account of the Floating Rate Account and (ii) amounts held from
time to time in the applicable sub-account of the Floating Rate Account that
represent distributions on the Class A-3FL REMIC II Regular Interest and
payments by the Class A-3FL Swap Counterparty under the Class A-3FL Swap
Agreement, shall be treated as a grantor trust for federal income tax purposes
and shall be designated as "Grantor Trust A-3FL"; provided that the initial
up-front payment by the Class A-3FL Swap Counterparty to the Depositor under the
Class A-3FL Swap Agreement shall belong to the Depositor and shall not be part
of the Trust Fund or Grantor Trust A-3FL. As provided herein, the Trustee shall
take all actions required hereunder to ensure that the portion of the Trust Fund
consisting of the Grantor Trust A-3FL maintains its status as a grantor trust
under federal income tax law and not be treated as part of REMIC I or REMIC II.
The Class A-3FL Certificates shall represent undivided beneficial interests in
Grantor Trust A-3FL as described herein.
The portion of the Trust Fund consisting of (i) the Class AN-FL
REMIC II Regular Interest (and distributions thereon), the Class AN-FL Swap
Agreement (and payments by the Class AN-FL Swap Counterparty thereunder) and the
applicable sub-account of the Floating Rate Account and (ii) amounts held from
time to time in the applicable sub-account of the Floating Rate Account that
represent distributions on the Class AN-FL REMIC II Regular Interest and
payments by the Class AN-FL Swap Counterparty under the Class AN-FL Swap
Agreement, shall be treated as a grantor trust for federal income tax purposes
and shall be designated as "Grantor Trust AN-FL". As provided herein, the
Trustee shall take all actions required hereunder to ensure that the portion of
the Trust Fund consisting of the Grantor Trust AN-FL maintains its status as a
grantor trust under federal income tax law and not be treated as part of REMIC I
or REMIC II. The Class AN-FL Certificates shall represent undivided beneficial
interests in Grantor Trust AN-FL as described herein.
The portion of the Trust Fund consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held from time to
time in the Collection Account and/or the Additional Interest Account that
represent Additional Interest shall be treated as a grantor trust for federal
income tax purposes, and such grantor trust will be designated as "Grantor Trust
Z". As provided herein, the Trustee shall take all actions reasonably necessary
to ensure that the portion of the Trust Fund consisting of Grantor Trust Z
maintains its status as a "grantor trust" under federal income tax law and is
not treated as part of REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
-3-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"119 North 0xx Xxxxxx Trust Mortgage Loan": The Mortgage Loan
secured by the 000 Xxxxx 0xx Xxxxxx Mortgaged Property and included in the Trust
Fund.
"119 North 4th Street Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as 000 Xxxxx 0xx Xxxxxx.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"60 State Street B-Note Non-Trust Loan": The Mortgage Loan, other
than the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan, that is secured by the
same Mortgage encumbering the 00 Xxxxx Xxxxxx Mortgaged Property as the 00 Xxxxx
Xxxxxx Combined Trust Mortgage Loan, and that is subordinate in right of payment
and in other respects to the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan.
"60 State Street B-Note Non-Trust Loan Holder": The holder of the 00
Xxxxx Xxxxxx B-Note Non-Trust Loan.
"60 State Street Combined Trust Mortgage Loan": Collectively, the
Merrill Trust Mortgage Loan and the Eurohypo Trust Mortgage Loan that are each
secured by the 00 Xxxxx Xxxxxx Mortgaged Property and included in the Trust
Fund.
"60 State Street Controlling Party": The "Directing Co-Lender"
within the meaning of the 00 Xxxxx Xxxxxx Intercreditor Agreement, which prior
to the occurrence of a 00 Xxxxx Xxxxxx Control Appraisal Event (and for so long
as it is continuing) with respect to the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan,
shall be, as of any date of determination, the holder of the 00 Xxxxx Xxxxxx
B-Note Non-Trust Loan, and, following the occurrence of a 00 Xxxxx Xxxxxx
Control Appraisal Event (and for so long as it is continuing) with respect to
the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan, shall be the Controlling Class
Representative.
"60 State Street Control Appraisal Event": The existence of a "Note
B Appraisal Reduction Period" within the meaning of the 00 Xxxxx Xxxxxx
Intercreditor Agreement.
"60 State Street Intercreditor Agreement": The Co-Lender Agreement,
dated March 27, 2006, between the Trust as holder of the 00 Xxxxx Xxxxxx
Combined Trust Mortgage Loan and the holders of the 00 Xxxxx Xxxxxx Non-Trust
Loan.
"60 State Street Loan Combination": Collectively, the 00 Xxxxx
Xxxxxx Combined Trust Mortgage Loan and the 00 Xxxxx Xxxxxx B-Note Non-Trust
Loan. The term "60 State Street Loan Combination" shall include any successor
REO Loans with respect to the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan and
the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan.
-4-
"60 State Street Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as 00 Xxxxx Xxxxxx.
"00 Xxxxx Xxxxxx REO Property": With respect to the 00 Xxxxx Xxxxxx
Loan Combination, the related Loan Combination REO Property.
"60 State Street Specially Designated Servicing Actions": Proposed
actions of the Special Servicer in respect of which the consent of the 00 Xxxxx
Xxxxxx Controlling Party is required, as set forth in Section 4 of the 00 Xxxxx
Xxxxxx Intercreditor Agreement.
"A-Note Trust Mortgage Loan": Each of the Trust Mortgage Loans as to
which the related Mortgage, which encumbers the related Mortgaged Property, also
secures a B-Note Non-Trust Loan, which B-Note Non-Trust Loan will not be
included in the Trust Fund. The Kenwood Towne Centre Trust Mortgage Loan, the 00
Xxxxx Xxxxxx Combined Trust Mortgage Loan and the 000 Xxxxx 0xx Xxxxxx Trust
Mortgage Loan are the only A-Note Trust Mortgage Loans.
"Acceptable Insurance Default": With respect to any Mortgage Loan,
any default under the related Mortgage Loan documents resulting from: (i) the
exclusion of acts of terrorism from coverage under the related "all risk"
casualty insurance policy maintained on the related Mortgaged Property and (ii)
the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but, in each case, only if the Special Servicer has
determined, in its reasonable judgment (exercised in accordance with the
Servicing Standard), that (a) such insurance is not available at commercially
reasonable rates and the subject hazards are not commonly insured against by
prudent owners of similar real properties in similar locales (but only by
reference to such insurance that has been obtained by such owners at current
market rates) or (b) such insurance is not available at any rate. Subject to the
Servicing Standard, in making any of the determinations required in subclause
(a) or (b) of this definition, the Special Servicer shall be entitled to rely on
the opinion of an insurance consultant.
"Accountant's Consent" As defined in Section 3.14.
"Accrued Certificate Interest": With respect to any Class of
Sequential Pay Certificates (other than the Class A-3FL Certificates and the
Class AN-FL Certificates), the Class A-3FL REMIC II Regular Interest or the
Class AN-FL REMIC II Regular Interest, for any Distribution Date, one month's
interest at the Pass-Through Rate applicable to such Class of Certificates, the
Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC II Regular
Interest, as the case may be, for such Distribution Date, accrued on the related
Class Principal Balance outstanding immediately prior to such Distribution Date;
and with respect to the Class X Certificates for any Distribution Date, the
aggregate of all Accrued Component Interest with respect to the Class X
Components for such Distribution Date. Accrued Certificate Interest shall be
calculated on a 30/360 Basis and, with respect to any Class of Regular
Certificates, the Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC
II Regular Interest, for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to any Class X Component,
for any Distribution Date, one month's interest at the Class X Strip Rate with
respect to such Class X Component for such Distribution Date, accrued on the
Component Notional Amount of such Class X Component outstanding immediately
prior to such Distribution Date. Accrued Component Interest shall be calculated
on a 30/360 Basis and, with respect to any Class X Component, for any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
-5-
"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 accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis.
"Actual/365 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable accrual period) in a year assumed to consist of 365 days.
"Actual/365 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/365Acut Basis.
"Additional Exclusions": Exclusions in addition to those in the
insurance policies for the Mortgaged Properties on September 11, 2001.
"Additional MLMLI Deposit": "With respect to MLMLI, cash amounts in
the sum of $13,806.31 (of which $10,130.28 represents principal, $74.21
represents interest at the related Mortgage Rate and $3,601.01 represents the
related Yield Maintenance Charge) and $90.73 (of which $90.00 represents
principal and $0.73 represents interest at the related Mortgage Rate), to be
deposited by MLMLI prior to the initial Distribution Date pursuant to the
related Mortgage Loan Purchase Agreement in respect of the Xxxxxxx Trust
Mortgage Loans (Super K-Mart Center and Settlement Apartments) identified as
loan numbers 131 and 139, respectively, on the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate plus the related
Additional Interest Rate on such deferred interest. For purposes of this
Agreement, Additional Interest on an ARD Loan or any successor REO 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 Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Account": The segregated account or accounts
(which may be a sub-account of the Distribution Account) created and maintained
by the Trustee pursuant to Section 3.04(d) which shall be entitled "LaSalle Bank
National Association as Trustee, in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates,
Series 2006-1, Additional Interest Account". The Additional Interest Account
shall not be an asset of either REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per annum rate at
which such Mortgage Loan accrues interest after the Anticipated Repayment Date
(in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Item 1123 Servicer": Any Additional Servicer that meets
the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB with respect
to the Subject Securitization Transaction.
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"Additional Servicer": Any Servicer, other than the Master Servicer,
the Special Servicer or the Trustee.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d) and
4.03(d), interest payable to the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent on Advances (to the extent not offset by Default
Charges or amounts otherwise payable to any related Non-Trust Noteholder as
provided herein) and amounts payable to the Special Servicer in connection with
inspections of Mortgaged Properties required pursuant to the first sentence of
Section 3.12(a) (and not otherwise paid from Default Charges or amounts
otherwise payable to any related Non-Trust Noteholder as provided herein), as
well as (without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (vii)(B), (ix), (xi), (xii), (xiii),
(xv) and (xix) of Section 3.05(a) out of collections on the related Trust
Mortgage Loans or REO Properties or out of general collections on the Trust
Mortgage Loans and any REO Properties on deposit in the Collection Account as
indicated in such clauses of Section 3.05(a), (y) pursuant to any of clauses
(ix), (xi), (xii), (xiii) and (xvi) of Section 3.05(e) out of collections on any
Loan Combination or any related Loan Combination REO Property on deposit in the
related Loan Combination Custodial Account as indicated in such clauses of
Section 3.05(e) (but only to the extent that such collections would have
otherwise been transferred to the Collection Account with respect to the related
Trust Mortgage Loan or any successor Trust REO Loan with respect thereto), or
(z) pursuant to clause (ii) or any of clauses (iv) through (vi) of Section
3.05(b) out of general collections on the Trust Mortgage Loans and any REO
Properties on deposit in the Distribution Account; provided that for purposes of
the allocations contemplated by Section 4.04 no such expense shall be deemed to
have been incurred by the Trust Fund until such time as the payment thereof is
actually made from the Collection Account, the related Loan Combination
Custodial Account or the Distribution Account, as the case may be.
"Additional Yield and Prepayment Amount": With respect to any Class
of Sequential Pay Certificates (other than any Excluded Class), the Class A-3FL
REMIC II Regular Interest or the Class AN-FL REMIC II Regular Interest, for any
Distribution Date on which distributions of principal are being made with
respect to that Class of Certificates, the Class A-3FL REMIC II Regular Interest
or the Class AN-FL REMIC II Regular Interest, as the case may be, pursuant to
Section 4.01(a), provided that a Yield Maintenance Charge and/or Prepayment
Premium was actually collected during the related Collection Period on a Trust
Mortgage Loan or a Trust REO Loan (for purposes of this definition, the "Prepaid
Loan") in the Loan Group as to which the Holders of such Class of Certificates,
Grantor Trust A-3FL with respect to the Class A-3FL REMIC II Regular Interest or
Grantor Trust AN-FL with respect to the Class AN-FL REMIC II Regular Interest
are/is receiving payments of principal on such Distribution Date, the product of
(a) such Yield Maintenance Charge and/or Prepayment Premium, net of Workout Fees
and Principal Recovery Fees payable therefrom and net of any portion of such
Yield Maintenance Charges and/or Prepayment Premiums applied pursuant to Section
4.01(k) to reimburse one or more Classes of Sequential Pay Certificates in
respect of Realized Losses and/or Additional Trust Fund Expenses previously
allocated to such Class(es), multiplied by (b) a fraction, which in no event
will be greater than one, the numerator of which is equal to the positive
excess, if any, of (i) the Pass-Through Rate for the subject Class of Sequential
Pay Certificates, the Class A-3FL REMIC II Regular Interest or the Class AN-FL
REMIC II Regular Interest, as the case may be, over (ii) the related Discount
Rate, and the denominator of which is equal to the positive excess, if any, of
(i) the Mortgage Rate for the Prepaid Loan over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is equal to the amount of
principal distributable on the subject Class of Sequential Pay Certificates, the
Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC II Regular
Interest, as the case may be, on such Distribution Date (or, for so long as the
Class A-4 and Class A-1A
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Certificates are outstanding, principal distributable on the subject Class of
Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest or the
Class AN-FL REMIC II Regular Interest, as the case may be, on that Distribution
Date from collections on the applicable Loan Group that includes the Prepaid
Loan), pursuant to Section 4.01(a), and the denominator of which is equal to the
Principal Distribution Amount (or, so long as the Class A-4 and Class A-1A
Certificates are outstanding, the Loan Group 1 Principal Distribution Amount or
the Loan Group 2 Principal Distribution Amount, as applicable, based on which
Loan Group includes the Prepaid Loan) for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse Rating Event": With respect to each Rating Agency that has
assigned a rating to any Class of rated Certificates, as of any date of
determination, the qualification, downgrade or withdrawal of the rating then
assigned to any such Class of rated Certificates by such Rating Agency (or the
placing of any such Class of rated Certificates on "negative credit watch"
status or "ratings outlook negative" status in contemplation of any such action
with respect thereto).
"Adverse REMIC Event": As defined in Section 10.01(h).
"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.
"Agreement": This
Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Annual Assessment Report": As defined in Section 3.14.
"Annual Attestation Report": As defined in Section 3.14.
"Annual Statement of Compliance": As defined in Section 3.13.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the rate per annum at which interest
accrues on such ARD Loan will increase as specified in the related Mortgage Note
(other than as a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer, as applicable, prepared in accordance with 12
C.F.R. SS. 225.64 and conducted in accordance with the standards of the
Appraisal Institute by an Independent Appraiser, which Independent Appraiser
shall be advised to take into account the factors specified in Section 3.09(a),
any available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider. The Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent may
conclusively rely on any Appraisal obtained in accordance with this Agreement.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Mortgage Loan, the excess, if any, of: (a) an amount, as calculated by the
Master Servicer, based on information
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provided by the Special Servicer and in consultation with the Controlling Class
Representative, as of the first Determination Date immediately succeeding the
date on which the Master Servicer obtains knowledge of the subject Mortgage Loan
becoming a Required Appraisal Mortgage Loan, if no new Required Appraisal (or
letter update or internal valuation) is required, or otherwise the date on which
a Required Appraisal (or letter update or internal valuation, if applicable) is
obtained, and each anniversary of such Determination Date thereafter so long as
the subject Mortgage Loan remains a Required Appraisal Mortgage Loan, equal to
the sum (without duplication) of (i) the Stated Principal Balance of such
Required Appraisal Mortgage Loan, (ii) to the extent not previously advanced by
or on behalf of the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent, all unpaid interest accrued on such Required Appraisal Mortgage
Loan through the most recent Due Date prior to such Determination Date at a per
annum rate equal to the related Net Mortgage Rate (exclusive of any portion
thereof that constitutes Additional Interest), (iii) all accrued but unpaid
(from related collections) Master Servicing Fees and Special Servicing Fees with
respect to such Required Appraisal Mortgage Loan and, without duplication, all
accrued or otherwise incurred but unpaid (from related collections) Additional
Trust Fund Expenses with respect to such Required Appraisal Mortgage Loan, (iv)
all related unreimbursed Advances made by or on behalf of the Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent with respect to such
Required Appraisal Mortgage Loan, together with (A) interest on those Advances
and (B) any related Unliquidated Advances and (v) all currently due and unpaid
real estate taxes and unfunded improvement reserves and assessments, insurance
premiums and, if applicable, ground rents with respect to the related Mortgaged
Property; over (b) an amount equal to the sum of (i) the Required Appraisal
Value and (ii) all escrows, reserves and letters of credit held as additional
collateral held with respect to such Required Appraisal Mortgage Loan. If the
Special Servicer fails to obtain a Required Appraisal (or letter update or
internal valuation, if applicable) within the time limit described in Section
3.09(a), and such Required Appraisal (or letter update or internal valuation, if
applicable) is required thereunder, then the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the Stated Principal
Balance of such Required Appraisal Mortgage Loan, to be adjusted upon receipt of
a Required Appraisal or letter update or internal valuation, if applicable.
Notwithstanding anything herein to the contrary, each Loan
Combination shall be treated as a single Required Appraisal Mortgage Loan for
purposes of calculating an Appraisal Reduction Amount. Any Appraisal Reduction
Amount with respect to any Loan Combination shall be allocated first to the
related B-note Non-Trust Loan, in each case up to the outstanding principal
balance thereof, and then to the applicable A-Note Trust Mortgage Loan.
"Appraised Value": With respect to each Mortgaged Property and REO
Property, the appraised value thereof based upon the most recent Appraisal (or
letter update or internal valuation, if applicable) that is contained in the
related Servicing File upon which the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent may conclusively rely.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(c).
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"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Periodic Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Mortgage Loan has not been paid in full
and no other Liquidation Event has occurred in respect thereof on or before such
Stated Maturity Date) and for any related Due Date thereafter as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (or, in the case of
a Non-Trust Loan for any Due Date, as of which such Mortgage Loan remains
outstanding and the related Trust Mortgage Loan remains part of the Trust Fund),
the Periodic Payment of principal and/or interest deemed to be due in respect
thereof on such Due Date equal to the Periodic Payment that would have been due
in respect of such Mortgage Loan on such Due Date if the related Mortgagor had
been required to continue to pay principal in accordance with the amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in effect
immediately prior to, and without regard to the occurrence of, its Stated
Maturity Date. With respect to any REO Loan, for any related Due Date as of
which the related REO Property or any interest therein remains part of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Periodic Payment that would have
been due in respect of the predecessor Mortgage Loan on such Due Date had it
remained outstanding (or, if the predecessor Mortgage Loan was a Balloon Loan
and such Due Date coincides with or follows what had been its Stated Maturity
Date, equal to the Assumed Periodic Payment that would have been deemed due in
respect of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum, without duplication, of (i) the aggregate
of the amounts on deposit in the Collection Account and the Distribution Account
as of the close of business on the related Determination Date and the amounts
collected by or on behalf of the Master Servicer as of the close of business on
such Determination Date and required to be deposited in the Collection Account,
which amounts shall, in the case of the initial Distribution Date, include the
Closing Date Deposit and the Additional MLMLI Deposit, (ii) the aggregate amount
of any P&I Advances made by the Master Servicer, the Trustee or any Fiscal Agent
for distribution on the Certificates on such Distribution Date pursuant to
Section 4.03, (iii) the aggregate amount transferred from the Pool REO Account
(if established) and/or any Loan Combination Custodial Account to the Collection
Account after the Determination Date in the month of such Distribution Date, but
on or prior to the P&I Advance Date in such month, pursuant to Section 3.16(c)
and/or Section 3.05(e), as applicable, (iv) the aggregate amount deposited by
the Master Servicer in the Collection Account for such Distribution Date
pursuant to Section 3.19(a) in connection with Prepayment Interest Shortfalls
and Casualty/Condemnation Interest Shortfalls, and (v) for each Distribution
Date occurring in March, the aggregate of the Interest Reserve Amounts in
respect of each Interest Reserve Loan deposited into the Distribution Account
pursuant to Section 3.05(c), net of (b) the portion of the amount described in
clause (a) of this definition that represents one or more of the following: (i)
collected Periodic Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any amounts payable or reimbursable to any
Person from (A) the Collection Account pursuant to clauses (ii)-(xvi), (xix) and
(xxi) of Section 3.05(a) or (B) the Distribution Account pursuant to clauses
(ii)-(vi) and (ix) of Section 3.05(b), (iii) Prepayment Premiums and Yield
Maintenance Charges, (iv) Additional Interest, (v) with respect to the
Distribution Date occurring in February of each year and in January of each year
that is not a leap year, the Interest Reserve Amounts
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with respect to the Interest Reserve Loans to be withdrawn from the Distribution
Account and deposited in the Interest Reserve Account in respect of such
Distribution Date and held for future distribution, pursuant to Section 3.04(c),
and (vi) any amounts deposited in the Collection Account or the Distribution
Account in error.
"B-Note Loan Holder": Each holder of (i) the Mortgage Note for a
B-Note Non-Trust Loan and (ii) the corresponding rights under the related Loan
Combination Intercreditor Agreement.
"B-Note Non-Trust Loan": With respect to each A-Note Trust Mortgage
Loan, the other Mortgage Loan that (i) is not included in the Trust Fund, (ii)
is subordinate in right of payment and in other respects to such A-Note Trust
Mortgage Loan to the extent set forth in the related Loan Combination
Intercreditor Agreement and (iii) is secured by the same Mortgage on the same
Mortgaged Property as such A-Note Trust Mortgage Loan.
"Balloon Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Scheduled 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).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Book-Entry Certificate
that is a Non-Registered Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in
New York,
New York or the city in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is Chicago,
Illinois), or the offices of the Master Servicer (which as of the Closing Date
is Charlotte, North Carolina), or the offices of the Special Servicer (which as
of the Closing Date is Overland Park, Kansas), are located, are authorized or
obligated by law or executive order to remain closed.
"Casualty/Condemnation Interest Shortfall": With respect to any
Trust Mortgage Loan as to which a Casualty/Condemnation Principal Prepayment was
received during any Collection Period and was applied to such Mortgage Loan as
an unscheduled payment of principal prior to such Mortgage Loan's Due Date in
such Collection Period, the amount of interest, to the extent not collected from
the related Mortgagor, that would have accrued (at a rate per annum equal to the
sum of (x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate) on the amount of such Casualty/Condemnation Principal
Prepayment during the period commencing on the date as of which such
Casualty/Condemnation Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive (net of any
portion of such interest that would have constituted Penalty Interest and/or
Additional Interest, if applicable).
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"Casualty/Condemnation Principal Prepayment": With respect to any
Trust Mortgage Loan, any amounts constituting Insurance Proceeds or amounts
received in connection with the taking of all or a part of a Mortgaged Property
by the exercise of the power of eminent domain or condemnation, that are applied
as an unscheduled principal prepayment in accordance with the provisions of this
Pooling and Servicing Agreement, in reduction of the principal balance of such
Mortgage Loan.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates, the Class X Certificates, the Class A-3FL REMIC II Regular
Interest or the Class AN-FL REMIC II Regular Interest, as of any date of
determination, a fraction, expressed as a decimal carried to at least eight
places, the numerator of which is the then current Class Principal Balance or
Class X Notional Amount, as applicable, of such Class of Certificates, the Class
A-3FL REMIC II Regular Interest or the Class AN-FL REMIC II Regular Interest, as
the case may be, and the denominator of which is the Original Class Principal
Balance or Original Notional Amount, as the case may be, of such Class of
Certificates, the Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC
II Regular Interest, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class X Notional Amount.
"Certificate Owner": With respect to a 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 Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02(a).
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Disqualified Non-United States Tax Person shall be Holder of
a Residual Certificate for any purpose hereof and, (ii) solely for the purposes
of giving any consent, approval or waiver pursuant to this Agreement that
relates to any of the Depositor, any Mortgage Loan Seller, the Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent in its respective capacity
as such (except with respect to amendments or waivers referred to in Sections
7.04 and 11.01 hereof and any consent, approval or waiver required or permitted
to be made by the Plurality Subordinate Certificateholder or the Controlling
Class Representative and any election, removal or replacement of the Special
Servicer or the Controlling Class Representative pursuant to Section 6.09), any
Certificate registered in the name of the Depositor, any Mortgage Loan Seller,
the
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Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, or any Certificate registered in the name of any of their
respective Affiliates, 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 relates to it has been obtained. The
Certificate Registrar shall be entitled to request and conclusively rely upon a
certificate of the Depositor, the 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 "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided, however, that the parties hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certification Parties": As defined in Section 8.16(b).
"Certifying Person": As defined in Section 8.16(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric, as applicable, class designation.
"Class A Senior Certificates": The Class A-1, Class A-2, Class A-3,
Class A-3FL, Class A-3B, Class A-SB, 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 "regular interest" in REMIC II 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 "regular interest" in REMIC II 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 "regular interest" in REMIC II 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3B Certificate": Any one of the Certificates with a "Class
A-3B" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-3FL Swap Payment Date to which it relates
based on the confirmation under the Class A-3FL Swap Agreement, the applicable
"Additional Fixed Amount" within the meaning of the confirmation under the Class
A-3FL Swap Agreement.
"Class A-3FL Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions, as well as all distributions of Yield Maintenance
Charges and Prepayment Premiums, properly made on or in respect
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of the Class A-3FL REMIC II Regular Interest with respect to such Distribution
Date and (ii) the amounts, if any, received from the Class A-3FL Swap
Counterparty pursuant to the Class A-3FL Swap Agreement for such Distribution
Date, less (b) any Class A-3FL Net Fixed Swap Payment, Class A-3FL Additional
Fixed Swap Payment and Class A-3FL Fixed Payer Shortfall Reimbursement Payment
required to be paid to the Class A-3FL Swap Counterparty pursuant to the Class
A-3FL Swap Agreement, consistent with Section 3.29, for such Distribution Date.
"Class A-3FL Certificate": Any one of the Certificates with a "Class
A-3FL" designation on the face thereof, substantially in the form of Exhibit A-1
hereto, and evidencing a proportionate interest in Grantor Trust A-3FL.
"Class A-3FL Depositor's Retained Amount": The initial up-front
payment from the Class A-3FL Swap Counterparty to the Depositor pursuant to the
Class A-3FL Swap Agreement.
"Class A-3FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Payment Default under the Class A-3FL Swap Agreement while the Trustee is
pursuing remedies under the Class A-3FL Swap Agreement pursuant to Section 3.29,
or (ii) immediately upon and following the termination of the Class A-3FL Swap
Agreement until any replacement agreement is entered into, the conversion of
distributions with respect to the Class A-3FL Certificates from distributions
based, in part, on floating interest payments from the Class A-3FL Swap
Counterparty under the Class A-3FL Swap Agreement to distributions based solely
on distributions in respect of the Class A-3FL REMIC II Regular Interest, as
specified in Section 4.01(c).
"Class A-3FL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-3FL Swap Payment Date to which it relates based on the
confirmation under the Class A-3FL Swap Agreement, the applicable "Fixed Amount"
within the meaning of the confirmation under the Class A-3FL Swap Agreement.
"Class A-3FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-3FL Swap Payment Date to which
it relates based on the confirmation under the Class A-3FL Swap Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the confirmation under the Class A-3FL Swap Agreement.
"Class A-3FL Floating Swap Payment": With respect to any
Distribution Date and the Class A-3FL Swap Payment Date to which it relates
based on the confirmation under the Class A-3FL Swap Agreement, the applicable
"Floating Amount" within the meaning of the confirmation under the Class A-3FL
Swap Agreement.
"Class A-3FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the Distributable
Certificate Interest with respect to the Class A-3FL REMIC II Regular Interest
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, (ii) any Class A-3FL Net Floating Swap Payment received from
the Class A-3FL Swap Counterparty for distribution on such Distribution Date and
(iii) if the Class A-3FL Swap Agreement is terminated and a replacement Class
A-3FL Swap Agreement is not obtained, any related Swap Termination Payment
collected during the related Collection Period, less (b) any Class A-3FL Net
Fixed Swap Payment and/or Class A-3FL Fixed Payer Shortfall Reimbursement
Payment made to the Class A-3FL Swap Counterparty with respect to such
Distribution Date.
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"Class A-3FL Net Fixed Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-3FL Fixed Swap Payment
for that Distribution Date over (ii) the Class A-3FL Floating Swap Payment for
that Distribution Date.
"Class A-3FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-3FL Floating Swap
Payment for that Distribution Date over (ii) the Class A-3FL Fixed Swap Payment
for that Distribution Date.
"Class A-3FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-3FL REMIC II Regular Interest on such
Distribution Date.
"Class A-3FL REMIC II Regular Interest": The uncertificated interest
in REMIC II, designated as "Class A-3FL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-3FL Sub-Account": As defined in Section 3.04(f).
"Class A-3FL Swap Agreement": With respect to the Class A-3FL
Certificates and the Class A-3FL REMIC II Regular Interest, the applicable
interest rate swap agreement consisting of the ISDA 2002 Master Agreement,
together with the related schedule, confirmation and any annexes thereto, dated
as of March 30, 2006, by and among the Class A-3FL Swap Counterparty and the
Trustee, solely in its capacity as Trustee, on behalf of the Trust, or any
replacement interest rate swap agreement entered into by the Trustee in
accordance with the terms of Section 3.29,
"Class A-3FL Swap Counterparty": Xxxxxxx Xxxxx Capital Services,
Inc. or its successor in interest or any swap counterparty under a replacement
Class A-3FL Swap Agreement.
"Class A-3FL Swap Payment Date": The "Payment Date" within the
meaning of the confirmation under the Class A-3FL Swap Agreement.
""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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the Class A-SB
Certificates for such date set forth on Schedule IV attached hereto.
"Class AJ Certificate": Any one of the Certificates with a "Class
AJ" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class AM Certificate": Any one of the Certificates with a "Class
AM" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
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"Class AN-FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class AN-FL Swap Payment Date to which it relates
based on the confirmation under the Class AN-FL Swap Agreement, the applicable
"Additional Fixed Amount" within the meaning of the confirmation under the Class
AN-FL Swap Agreement.
"Class AN-FL Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions, as well as all distributions of Yield Maintenance
Charges and Prepayment Premiums, properly made on or in respect of the Class
AN-FL REMIC II Regular Interest with respect to such Distribution Date and (ii)
the amounts, if any, received from the Class AN-FL Swap Counterparty pursuant to
the Class AN-FL Swap Agreement for such Distribution Date, less (b) any Class
AN-FL Net Fixed Swap Payment, Class AN-FL Additional Fixed Swap Payment and
Class AN-FL Fixed Payer Shortfall Reimbursement Payment required to be paid to
the Class AN-FL Swap Counterparty pursuant to the Class AN-FL Swap Agreement,
consistent with Section 3.29, for such Distribution Date.
"Class AN-FL Certificate": Any one of the Certificates with a "Class
AN-FL" designation on the face thereof, substantially in the form of Exhibit A-5
hereto, and evidencing a proportionate interest in Grantor Trust AN-FL.
"Class AN-FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation of a Swap
Payment Default under the Class AN-FL Swap Agreement while the Trustee is
pursuing remedies under the Class AN-FL Swap Agreement pursuant to Section 3.29,
or (ii) immediately upon and following the termination of the Class AN-FL Swap
Agreement until any replacement agreement is entered into, the conversion of
distributions with respect to the Class AN-FL Certificates from distributions
based, in part, on floating interest payments from the Class AN-FL Swap
Counterparty under the Class AN-FL Swap Agreement to distributions based solely
on distributions in respect of the Class AN-FL REMIC II Regular Interest, as
specified in Section 4.01(c).
"Class AN-FL Fixed Swap Payment": With respect to any Distribution
Date and the Class AN-FL Swap Payment Date to which it relates based on the
confirmation under the Class AN-FL Swap Agreement, the applicable "Fixed Amount"
within the meaning of the confirmation under the Class AN-FL Swap Agreement.
"Class AN-FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class AN-FL Swap Payment Date to which
it relates based on the confirmation under the Class AN-FL Swap Agreement, the
applicable "Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the confirmation under the Class AN-FL Swap Agreement.
"Class AN-FL Floating Swap Payment": With respect to any
Distribution Date and the Class AN-FL Swap Payment Date to which it relates
based on the confirmation under the Class AN-FL Swap Agreement, the applicable
"Floating Amount" within the meaning of the confirmation under the Class AN-FL
Swap Agreement.
"Class AN-FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the Distributable
Certificate Interest with respect to the Class AN-FL REMIC II Regular Interest
for such Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, (ii) any Class AN-FL Net Floating Swap Payment received from
the Class AN-FL Swap Counterparty for distribution on such Distribution Date and
(iii) if the Class AN-FL Swap
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Agreement is terminated and a replacement Class AN-FL Swap Agreement is not
obtained, any related Swap Termination Payment collected during the related
Collection Period, less (b) any Class AN-FL Net Fixed Swap Payment and/or Class
AN-FL Fixed Payer Shortfall Reimbursement Payment made to the Class AN-FL Swap
Counterparty with respect to such Distribution Date.
"Class AN-FL Net Fixed Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class AN-FL Fixed Swap Payment
for that Distribution Date over (ii) the Class AN-FL Floating Swap Payment for
that Distribution Date.
"Class AN-FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class AN-FL Floating Swap
Payment for that Distribution Date over (ii) the Class AN-FL Fixed Swap Payment
for that Distribution Date.
"Class AN-FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class AN-FL REMIC II Regular Interest on such
Distribution Date.
"Class AN-FL REMIC II Regular Interest": The uncertificated interest
in REMIC II, designated as "Class AN-FL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class AN-FL Sub-Account": As defined in Section 3.04(f).
"Class AN-FL Swap Agreement": With respect to the Class AN-FL
Certificates and the Class AN-FL REMIC II Regular Interest, the applicable
interest rate swap agreement consisting of the ISDA 2002 Master Agreement,
together with the related schedule, confirmation and any annexes thereto, dated
as of March 30, 2006, by and among the Class AN-FL Swap Counterparty and the
Trustee, solely in its capacity as Trustee, on behalf of the Trust, or any
replacement interest rate swap agreement entered into by the Trustee in
accordance with the terms of Section 3.29,
"Class AN-FL Swap Counterparty": Xxxxxxx Xxxxx Capital Services,
Inc. or its successor in interest or any swap counterparty under a replacement
Class AN-FL Swap Agreement.
"Class AN-FL Swap Payment Date": The "Payment Date" within the
meaning of the confirmation under the Class AN-FL Swap Agreement.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II 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-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II 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-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
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"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II 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-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II 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-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest
or the Class AN-FL REMIC II Regular Interest, as the case may be, outstanding
from time to time. As of the Closing Date, the Class Principal Balance of each
Class of Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest
and the Class AN-FL REMIC II Regular Interest shall equal the Original Class
Principal Balance thereof. On each Distribution Date, the Class Principal
Balance of each of the respective Classes of the Sequential Pay Certificates
(exclusive of the Class A-3FL Certificates and the Class AN-FL Certificates),
the Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular
Interest shall be reduced by the amount of any distributions of principal made
thereon on such Distribution Date pursuant to Section 4.01 or 9.01, as
applicable, and shall be further reduced by the amount of any Realized Losses
and Additional Trust Fund Expenses allocated thereto on such Distribution Date
pursuant to the first paragraph of Section 4.04(a). The respective Class
Principal Balances of the various Classes of Sequential Pay Certificates
(exclusive of the Class A-3FL Certificates and the Class AN-FL Certificates),
the Class A-3FL REMIC II Regular Interest and the Class AN-FL
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REMIC II Regular Interest shall be increased, as and to the extent and in the
order provided in the second paragraph of Section 4.04(a), in connection with
any recoveries of Nonrecoverable Advances and/or interest thereon which were
reimbursed and/or paid in a prior Collection Period from the principal portion
of general collections on the Mortgage Pool and which are included in the
Principal Distribution Amount for the current Distribution Date. Distributions
in respect of a reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Sequential Pay Certificates, the
Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular
Interest, as the case may be, shall not constitute distributions of principal
and shall not result in reduction of the related Class Principal Balance. The
Class Principal Balance of the Class A-3FL Certificates shall at all times equal
the Class Principal Balance of the Class A-3FL REMIC II Regular Interest and the
Class Principal Balance of the Class AN-FL Certificates shall at all times equal
the Class Principal Balance of the Class AN-FL REMIC II Regular Interest.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing multiple "regular interests" in REMIC II for
purposes of the REMIC Provisions.
"Class X Component": Any of the 25 components of the Class X
Certificates listed in the following table.
----------------------------------------
Class Designation
Class X of Corresponding
Component Certificates
----------------------------------------
X-A-1 A-1
----------------------------------------
X-A-2 A-2
----------------------------------------
X-A-3 A-3
----------------------------------------
X-A-3FL A-3FL
----------------------------------------
X-X-0X X-0X
----------------------------------------
X-A-SB A-SB
----------------------------------------
X-A-4 A-4
----------------------------------------
X-A-1A A-1A
----------------------------------------
X-AM AM
----------------------------------------
X-AJ AJ
----------------------------------------
X-ANFL ANFL
----------------------------------------
X-B B
----------------------------------------
X-C C
----------------------------------------
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----------------------------------------
Class Designation
Class X of Corresponding
Component Certificates
----------------------------------------
X-D D
----------------------------------------
X-E E
----------------------------------------
X-F F
----------------------------------------
X-G G
----------------------------------------
X-H H
----------------------------------------
X-J J
----------------------------------------
X-K K
----------------------------------------
X-L L
----------------------------------------
X-M M
----------------------------------------
X-N N
----------------------------------------
X-P P
----------------------------------------
X-Q Q
----------------------------------------
"Class X Notional Amount": With respect to the Class X Certificates
and any date of determination, the sum of the then Component Notional Amounts of
all of the Class X Components.
"Class X Strip Rate": With respect to any Class X Component, for any
Distribution Date, a rate per annum equal to (i) the Weighted Average Net
Mortgage Pass-Through Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Corresponding Certificates (or, in the case of the
Class A-3FL Certificates, for the Class A-3FL REMIC II Regular Interest and, in
the case of the Class AN-FL Certificates, for the Class AN-FL REMIC II Regular
Interest) for such Distribution Date. In no event, however, shall any Class X
Strip Rate be less than zero.
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a proportionate interest in Grantor Trust Z.
"Clearstream": Clearstream Banking, Luxembourg or any successor.
"Closing Date": March 30, 2006.
"Closing Date Deposit": With respect to MLMLI, a cash amount in the
sum of $62,956.78 to be deposited by MLMLI pursuant to the related Mortgage Loan
Purchase Agreement in respect of the Xxxxxxx Trust Mortgage Loan (Encino Valley)
identified as loan number 40 on the Mortgage Loan Schedule, which sum represents
the amount of interest that would have accrued during the entire month of March
2006 at the related Net Mortgage Rate on the Cut-off Date Balance of that Trust
Mortgage Loan.
"Closing Date Deposit Mortgage Loan": Any Trust Mortgage Loan in
respect of which a Closing Date Deposit is required to be made by the related
Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement.
"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
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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-backed pass-through certificates and
commercial mortgage-backed bonds and the commercial mortgage loans and
foreclosed properties underlying or backing them to investors holding or owning
such certificates or bonds, and any successor to such other association or
organization. If an organization or association described in one of the
preceding sentences of this definition does not exist, "CMSA" shall be deemed to
refer to such other association or organization as shall be selected by the
Master Servicer and reasonably acceptable to the Trustee, the Special Servicer
and the Controlling Class Representative.
"CMSA Advance Recovery Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"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.
"CMSA Collateral Summary File": A 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.
"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 and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"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.
"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.
"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
-21-
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan 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.
"CMSA Loan Level Reserve/LOC Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Level Reserve Report" 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
securities transactions generally.
"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.
"CMSA Loan Setup File": A 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.
"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 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, net cash flow
and debt service coverage numbers used in the other reports required by this
Agreement.
"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.
"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.
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"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.
"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 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
securities transactions generally.
"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 recommended by the CMSA for
commercial mortgage-backed securities transactions generally.
"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" 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
securities transactions generally.
"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
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Collection Account": One or more segregated accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled: "Wachovia
Bank, National Association, as Master Servicer for LaSalle Bank National
Association, as Trustee, on behalf of and in trust for the registered holders of
ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1".
"Collection Period": Individually and collectively, as the context
may require: with respect to each Mortgage Loan and any successor REO Loan with
respect thereto, for any Distribution Date, the period commencing on the day
immediately following the related Determination Date for such Mortgage Loan for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-off Date) and ending on and
including the related Determination Date for such Mortgage Loan for the subject
Distribution Date. For the purposes of this Agreement, with respect to any
Distribution Date, the Collection Period that corresponds to that Distribution
Date (including, for example, but without limitation, references to "the related
Collection Period") shall mean the Collection Periods (determined in accordance
with the preceding sentence) ending in the month in which such Distribution Date
occurs that are applicable to the Xxxxxxx Trust Mortgage Loans, the Eurohypo
Trust Mortgage Loan and/or the Countrywide Trust Mortgage Loans, as applicable.
-23-
"Commission": The United States Securities and Exchange Commission
or any successor agency.
"Component Notional Amount": With respect to each Class X Component
and any date of determination, an amount equal to the then REMIC I Principal
Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate Class of Sequential Pay Certificates (based on the payment
priorities set forth in Section 4.01(a)) that has a Class Principal Balance that
is greater than 25% of the Original Class Principal Balance thereof (without
considering any Appraisal Reduction Amounts); provided, however, that if no
Class of Sequential Pay Certificates has a Class Principal Balance that
satisfies such requirement, then the Controlling Class shall be the most
subordinate outstanding Class of Sequential Pay Certificates (based on the
payment priorities set forth in Section 4.01(a)) with a Class Principal Balance
greater than zero. With respect to determining and exercising the rights of the
Controlling Class, the Class A Senior Certificates shall collectively be deemed
to be a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its asset-backed securities trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services Group--ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be a Specially Serviced
Mortgage Loan in accordance with the definition of "Specially Serviced Mortgage
Loan".
"Corresponding Certificates": With respect to any REMIC I Regular
Interest, the Class of Sequential Pay Certificates for which such REMIC I
Regular Interest is the Corresponding REMIC I Regular Interest. With respect to
any Class X Component, the Class of Sequential Pay Certificates designated as
the "Corresponding Certificates" for such Class X Component in the definition of
"Class X Component".
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay Certificates.
With respect to the Class A-3FL REMIC II Regular Interest, REMIC I Regular
Interest LA-3FL. With respect to the Class AN-FL REMIC II Regular Interest,
REMIC I Regular Interest LAN-FL. With respect to any Class X Component, the
REMIC I Regular Interest that, with the replacement of "L" with "X-", at the
beginning of its designation, has the same alphabetic or alphanumeric
designation as such Class X Component.
"Countrywide": Countrywide Commercial Real Estate Finance, Inc., a
California corporation, or its successor in interest.
"Countrywide Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 22, 2006, between the
Depositor and Countrywide and relating to the transfer of the Countrywide Trust
Mortgage Loans to the Depositor.
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"Countrywide Securities": Countrywide Securities Corporation, a
California corporation, or its successor in interest.
"Countrywide Trust Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Countrywide Mortgage
Loan Purchase Agreement.
"Crossed Loan": As defined in Section 2.03(a). The Mortgage Loans
comprising a Loan Combination shall not be deemed to be Crossed Loans for
purposes of this Agreement.
"Crossed Loan Group": As defined in Section 2.03(a).
"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, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require: with respect to each Mortgage Loan, the related Due Date of such
Mortgage Loan in March 2006; or, with respect to any Mortgage Loan that has its
first Due Date in April 2006, March 1, 2006, or, with respect to any Mortgage
Loan that has its first Due Date in May 2006, its origination date.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Periodic Payments due on or before
such date, whether or not received.
"DBRS": Dominion Bond Rating Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains in existence,
"DBRS" 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 Trustee, the Master Servicer
and the Special Servicer and any Fiscal Agent, and specific ratings of DBRS
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Debt Service Coverage Ratio": With respect to any Trust Mortgage
Loan, as of any date of determination, the ratio of (x) the annualized Net
Operating Income (before payment of any debt service on such Mortgage Loan
generated by the related Mortgaged Property during the most recently ended
period of not less than six months and not more than twelve months for which
financial statements, if available (whether or not audited) have been received
by or on behalf of the related Mortgage Loan Seller (prior to the Closing Date
or, in the case of a Qualified Substitute Mortgage Loan, prior to the relevant
date of determination) or the Master Servicer or the Special Servicer (following
the Closing Date), to (y) twelve times the amount of the Periodic Payment in
effect for such Mortgage Loan as of such date of determination.
"Default Charges": Penalty Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Loan.
"Defaulted Mortgage Loan": A Mortgage Loan: (i) that is (A)
delinquent 60 days or more in respect of a Periodic Payment (not including the
Balloon Payment) or (B) delinquent in respect of its Balloon Payment unless (x)
the related Mortgagor makes an Assumed Periodic Payment on each
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Due Date (commencing with the Due Date of such Balloon Payment) during the
period contemplated in clause (y), and (y) the Master Servicer receives, within
60 days after the Due Date of such Balloon Payment, written evidence from an
institutional lender of such lender's binding commitment to refinance such
Mortgage Loan within 120 days after the Due Date of such Balloon Payment and
either such 120-day period has not expired or it has not been determined, in
accordance with the definition of "Specially Serviced Mortgage Loan" that the
refinancing could not reasonably be expected to occur, in either case 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) as to which
the Special Servicer has, by written notice to the related Mortgagor,
accelerated the maturity of the indebtedness evidenced by the related Mortgage
Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which permits or requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than (i) in the case of a Trust Mortgage Loan, the then outstanding
principal balance of such Mortgage Loan, and (ii) in the case of any Non-Trust
Loan, the then-aggregate outstanding principal balance of such Mortgage Loan and
all other Mortgage Loans in such Loan Combination that are senior to, or pari
passu with, such Mortgage Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Definitive Certificate
that is a Non-Registered Certificate.
"Depositor": Xxxxxxx Xxxxx Mortgage Investors, 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 Securities Exchange Act of
1934, as amended.
"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.
"Determination Date": For any Distribution Date, (i) with respect to
each Mortgage Loan that has a Due Date on or prior to the fourth Business Day
prior to such Distribution Date, the fourth Business Day prior to such
Distribution Date, and (ii) with respect to each other Mortgage Loan, the
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Due Date for such Mortgage Loan in the month in which such Distribution Date
occurs. For the purposes of this Agreement, with respect to any Distribution
Date, the "Determination Date" that corresponds to that Distribution Date
(including, for example, but without limitation, references to "the related
Determination Date") shall mean the Determination Dates (determined in
accordance with the preceding sentence) occurring in the same month as such
Distribution Date that are applicable to the Mortgage Pool.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management of such REO
Property, the holding of such REO Property primarily for sale or lease or the
performance of any construction work thereon, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or the Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Special
Servicer or any Sub-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": With respect to any prepaid Trust Mortgage Loan or
Trust REO Loan for purposes of allocating any Prepayment Premium or Yield
Maintenance Charge received thereon or with respect thereto among the respective
Classes of the Sequential Pay Certificates (other than any Excluded Class
thereof), the Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II
Regular Interest, an amount equal to the discount rate stated in the Mortgage
Loan documents related to such Trust Mortgage Loan or Trust REO Loan used in
calculating the related Prepayment Premium or Yield Maintenance Charge; provided
that, if a discount rate is not stated thereon, the "Discount Rate" will be an
amount equal to the yield (when compounded monthly) on the U.S. Treasury issue
(primary issue) with a maturity date closest to the maturity date or Anticipated
Repayment Date, as applicable, for such prepaid Trust Mortgage Loan or Trust REO
Loan. In the event there are two or more such U.S. Treasury issues (a) with the
same coupon, the issue with the lowest yield shall apply, and (b) with maturity
dates equally close to the maturity date or Anticipated Repayment Date, as
applicable, for the prepaid Trust Mortgage Loan or Trust REO Loan, the issue
with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person": With respect to any
Residual Certificate, any Non-United States Tax Person or agent thereof other
than: (1) a Non-United States Tax Person that (a) holds such Residual
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 Residual Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows generated by
such Residual Certificate and intends to pay taxes associated with holding such
Residual Certificate, and (c) has furnished the Transferor and the Trustee 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 and the
Certificate Registrar an opinion of nationally recognized tax counsel to the
effect that (x) the Transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated thereunder and
(y) such Transfer of such Residual Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization": (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of
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the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Trustee
or the REMIC Administrator based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Residual 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 Residual Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"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
Regular Certificates, the Class A-3FL REMIC II Regular Interest or the Class
AN-FL REMIC II Regular Interest for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates, the Class A-3FL
REMIC II Regular Interest or the Class AN-FL REMIC II Regular Interest, as the
case may be, for such Distribution Date, reduced (other than with respect to the
Class X Certificates) (to not less than zero) by the product of (a) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by (b) a fraction, expressed as a decimal, the numerator of which is the Accrued
Certificate Interest in respect of the subject Class of Certificates, the Class
A-3FL REMIC II Regular Interest or the Class AN-FL REMIC II Regular Interest, as
the case may be, for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of
Sequential Pay Certificates (exclusive of the Class A-3FL Certificates and the
Class AN-FL Certificates), the Class A-3FL REMIC II Regular Interest and the
Class AN-FL REMIC II Regular Interest, as the case may be, for such Distribution
Date; provided that, if the aggregate Class Principal Balance of the Sequential
Pay Certificates (exclusive of the Class A-3FL Certificates and the Class AN-FL
Certificates), the Class A-3FL REMIC II Regular Interest or the Class AN-FL
REMIC II Regular Interest is reduced as a result of a Realized Loss caused by a
diversion of principal collections on the Mortgage Pool to reimburse
Nonrecoverable Advances and/or pay interest thereon as contemplated by Section
1.02, and if there is a subsequent recovery of such amounts that results in the
reinstatement of the Class Principal Balance of any one or more Classes of
Sequential Pay Certificates (exclusive of the Class A-3FL Certificates and the
Class AN-FL Certificates), the Class A-3FL REMIC II Regular Interest and/or the
Class AN-FL REMIC II Regular Interest as provided in the definition of "Class
Principal Balance" and the second paragraph of Section 4.04(a), then the amount
of Distributable Certificate Interest with respect to each Class of Regular
Certificates, the Class A-3FL REMIC II Regular Interest and/or the Class AN-FL
REMIC II Regular Interest for the next succeeding Distribution Date shall be
increased by the amount of any and all additional Distributable Certificate
Interest that would have been payable with respect to the subject Class of
Regular Certificates, the Class A-3FL REMIC II Regular Interest or the Class
AN-FL REMIC II Regular Interest if such diversion of principal and the
corresponding allocation of a Realized Loss (up to the amount of the reinstated
balances) had not occurred.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1".
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"Distribution Date": During any given month, the 12th day of such
month, or if the 12th day is not a Business Day, the next succeeding Business
Day, commencing in April 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"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 Periodic 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 Periodic Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and (a) with respect
to deposits held for 30 days or more in such account, the long-term deposit or
unsecured debt obligations of which are rated at least "AA(low)" by DBRS (if
then rated by DBRS and, if not so rated, then the equivalent rating by two other
nationally recognized statistical rating organizations, which may include Fitch
and S&P), "AA" by Fitch and "AA" by S&P (or "A-" provided the short-term
unsecured debt obligations are rated at least "A-1" by S&P) (or, with respect to
any such Rating Agency, such lower rating as will not result in an Adverse
Rating Event, as evidenced in writing by the applicable Rating Agency), at any
time such funds are on deposit therein, or (b) with respect to deposits held for
less than 30 days in such account, the short-term deposits of which are rated at
least "R-1(middle)" by DBRS (if then rated by DBRS and, if not so rated, then
the equivalent rating by two other nationally recognized statistical rating
organizations, which may include Fitch and S&P), "F-1" by Fitch and "A-1" by S&P
(or, with respect to any such Rating Agency, such lower rating as will not
result in an Adverse Rating Event) as evidenced in writing by the applicable
Rating Agency at any time such funds are on deposit therein, (ii) an account or
accounts maintained with PNC Bank National Association so long as PNC Bank
National Association (1) has a long-term unsecured debt rating of at least "A"
and a short-term rating of at least "R-1(middle)" from DBRS (if then rated by
DBRS), (2) has a long-term unsecured debt rating of at least "A" and a
short-term rating of at least "F-1" from Fitch and (3) has a long-term unsecured
debt rating of at least "A" and a short-term rating of at least "A-1" from S&P,
(iii) a segregated trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depository institution or
trust company, is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 C.F.R. SS. 9.10(b), having in either case a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority, or (iv) any other account the use
of which would not, in and of itself, cause an Adverse Rating Event, as
confirmed in writing by each Rating Agency.
"Enhancement/Support Provider": Any enhancement or support provider
contemplated by Item 1114(b) or Item 1115 of Regulation AB with respect to the
Trust Fund or any one or more Classes of Certificates.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-05 or a review conducted in accordance with the All Appropriate
Inquiries final rule issued by the United States Environmental Protection Agency
on November 1, 2005 (40 C,F,R, Part 312), or any successor to either.
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"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Euroclear": The Euroclear System or any successor.
"Eurohypo": Eurohypo AG,
New York Branch, the
New York branch of a
German bank, Eurohypo AG, or its successor in interest.
"Eurohypo Trust Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 22, 2006, between the
Depositor and Eurohypo and relating to the transfer of the Eurohypo Trust
Mortgage Loan to the Depositor.
"Eurohypo Trust Mortgage Loan: The Trust Mortgage Loan transferred
and assigned to the Depositor pursuant to the Eurohypo Trust Mortgage Loan
Purchase Agreement.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Reportable Event": With respect to (a) the Trustee or,
if and to the extent specifically applicable thereto or to its duties on behalf
of the Trustee, any Servicing Representative of the Trustee or any Trustee
Appointee, any Trustee Reportable Event, (b) the Master Servicer or, if and to
the extent specifically applicable thereto or to its duties on behalf of the
Master Servicer, any Servicing Representative of the Master Servicer, any Master
Servicer Reportable Event, and (c) the Special Servicer or, if and to the extent
specifically applicable thereto or to its duties on behalf of the Special
Servicer, any Servicing Representative of the Special Servicer, any Special
Servicer Reportable Event.
"Exchange Act Reporting Year": Each of (a) the Trust's fiscal year
2006, and (b) any subsequent fiscal year of the Trust, but only if as of the
beginning of such subsequent fiscal year of the Trust, the Registered
Certificates are held in the aggregate by at least 300 holders (which may
consist of (i) in the case of Registered Certificates held in definitive form,
direct Holders of such Definitive Certificates, and/or (ii) in the case of
Registered Certificates held in book-entry form through the Depository,
Depository Participants having accounts with the Depository).
"Exchange Act Reports": As defined in Section 8.16(a).
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1, Class A-2, Class X-0, Xxxxx X-0X, Class A-SB, Class A-4,
Class A-1A, Class AM, Class AJ, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates.
"Exemption": Either of Department of Labor Prohibited Transaction
Exemption ("PTE") 90-29 (as amended by XXX 00-00, XXX 0000-00 and PTE 2002-41)
or PTE 2000-55 (as amended by PTE 2000-58 and PTE 2002-41), as each may be
amended from time to time, or any successor thereto, all as issued by the U.S.
Department of Labor.
"Exemption-Favored Party": Any of (i) MLPF&S or Countrywide
Securities, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under
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common control with MLPF&S or Countrywide Securities, and (iii) any member of
any underwriting syndicate or selling group of which any Person described in
clauses (i) and (ii) is a manager or co-manager with respect to a Class of
Investment Grade Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan, Corrected
Mortgage Loan or REO Property (other than a Mortgage Loan or REO Property, as
the case may be, that was purchased or replaced by any of the Mortgage Loan
Sellers pursuant to the applicable Mortgage Loan Purchase Agreement, or that was
purchased by the Plurality Subordinate Certificateholder or the Special Servicer
or any assignee of the foregoing pursuant to Section 3.18, or by the related
B-Note Loan Holder (in the case of an A-Note Trust Mortgage Loan) pursuant to
the related Loan Combination Intercreditor Agreement or by the Master Servicer,
the Special Servicer or the Plurality Subordinate Certificateholder pursuant to
Section 9.01) that there has been a recovery of all Insurance Proceeds,
Liquidation Proceeds, REO Revenues and other payments or recoveries that the
Special Servicer has determined, in accordance with the Servicing Standard, will
be ultimately recoverable.
"Fiscal Agent": A Person who is at any time appointed by the Trustee
pursuant to Section 8.18 to act as fiscal agent.
"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 organization or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer, the Special Servicer and any
Fiscal Agent, and specific ratings of Fitch herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Floating Rate Account": The segregated accounts or sub-accounts
(which may be sub-accounts of the Distribution Account) created and maintained
by the Trustee pursuant to Section 3.04(f), in trust for: (i) in the case of the
Class A-3FL Certificates and the Class A-3FL REMIC II Regular Interest, the
holders of Class A-3FL Certificates and the Class A-3FL Swap Counterparty, as
their interests may appear, which shall be entitled "LaSalle Bank National
Association, as Trustee, on behalf of and in trust for the registered holders of
ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, Class A-3FL, and Xxxxxxx Xxxxx Capital Services,
Inc., as their interests may appear, Floating Rate Account"; and (ii) in the
case of the Class AN-FL Certificates and the Class AN-FL REMIC II Regular
Interest, the holders of the Class AN-FL Certificates and the Class AN-FL Swap
Counterparty, as their interests may appear, which shall be entitled "LaSalle
Bank National Association, as Trustee, on behalf of and in trust for the
registered holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1, Class AN-FL, and Xxxxxxx
Xxxxx Capital Services, Inc., as their interests may appear, Floating Rate
Account".
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Exchange Act Form 8-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing current reports under Section 13 or
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15(d) of the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and for
reports of nonpublic information required to be disclosed by Regulation FD (17
C.F.R. 243.100 and 243.101). For purposes of this Agreement, "Form 8-K" shall be
deemed to include any successor or equivalent Exchange Act form adopted by the
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 8-K Required Information": Any and all information, including
with respect to any applicable Exchange Act Reportable Events, required pursuant
to the Exchange Act and/or the rules and regulations promulgated thereunder to
be reported by an asset-backed issuer under Form 8-K.
"Form 10-D": Exchange Act Form 10-D, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing distribution reports under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-D Distribution Report": A distribution report on Form 10-D.
"Form 10-D Required Information": Any and all information, including
with respect to any applicable Exchange Act Reportable Events, required pursuant
to the Exchange Act and/or the rules and regulations promulgated thereunder to
be reported by an asset-backed issuer under Form 10-D.
"Form 10-K": Exchange Act Form 10-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing annual reports pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is prescribed, as well
as for filing transition reports pursuant to Section 13 or 15(d) of the Exchange
Act. For purposes of this Agreement, "Form 10-K" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-K Annual Report": An annual report on Form 10-K.
"Form 10-K Required Information": Any and all information, including
with respect to any applicable Exchange Act Reportable Events, required pursuant
to the Exchange Act and/or the rules and regulations promulgated thereunder to
be reported by an asset-backed issuer under Form 10-K.
"Gain-on-Sale Proceeds": With respect to any Trust Mortgage Loan or
Trust REO Loan, the excess, if any, of (i) any and all Liquidation Proceeds
collected with respect to such Mortgage Loan or the related REO Property, as the
case may be, net of any related liquidation expenses, P&I Advances, Servicing
Advances, Principal Recovery Fees, interest on Advances, Master Servicing Fees,
Special Servicing Fees and Additional Trust Fund Expenses, and if applicable,
further net of any portion of such Liquidation Proceeds payable to the related
Non-Trust Noteholder(s) (if any), over (ii) the Purchase Price for such Trust
Mortgage Loan or Trust REO Loan, as the case may be, on the date on which such
Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
(which may be a sub-account of the Distribution Account) created and maintained
by the Trustee pursuant to Section 3.04(e) in trust for the Certificateholders,
which shall be entitled "LaSalle Bank National Association, as
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Trustee, in trust for the registered holders of ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1,
Gain-on-Sale Reserve Account".
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, either the related Rule 144A Global Certificate or
the related Regulation S Global Certificate.
"Grantor Trust A-3FL": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which consist of (i) the
Class A-3FL REMIC II Regular Interest and distributions thereon, (ii) the Class
A-3FL Swap Agreement and, except for the Class A-3FL Depositor's Retained
Amount, payments by the Class A-3FL Swap Counterparty thereunder and (iii) the
Class A-3FL Sub-Account, intended to be treated as a "grantor trust" within the
meaning of the Grantor Trust Provisions.
"Grantor Trust A-3FL Assets": The segregated pool of assets
comprising Grantor Trust A-3FL.
"Grantor Trust AN-FL": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which consist of (i) the
Class AN-FL REMIC II Regular Interest and distributions thereon, (ii) the Class
AN-FL Swap Agreement and payments by the Class AN-FL Swap Counterparty
thereunder and (iii) the Class AN-FL Sub-Account, intended to be treated as a
"grantor trust" within the meaning of the Grantor Trust Provisions.
"Grantor Trust AN-FL Assets": The segregated pool of assets
comprising Grantor Trust AN-FL.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Grantor Trust Z": That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which consist of any Additional
Interest with respect to the Trust ARD Loans and any successor Trust REO Loans
after their respective Anticipated Repayment Dates and amounts held from time to
time in the Collection Account and/or the Additional Interest Account that
represent Additional Interest.
"Grantor Trust Z Assets": The segregated pool of assets comprising
Grantor Trust Z.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Group 1 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Trust Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, 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, without limitation, asbestos and asbestos-containing materials,
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polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c).
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee, any Fiscal Agent and any and all Affiliates thereof
(and, with respect to any Loan Combination, any of the related Non-Trust
Noteholder(s) 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, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
the Controlling Class Representative, the Trustee, any Fiscal Agent or any
Affiliate thereof (or, with respect to any Loan Combination, any of the related
Non-Trust Noteholder(s) or any Affiliate thereof), and (iii) is not connected
with the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Controlling Class Representative, the Special Servicer, the Trustee, any Fiscal
Agent or any Affiliate thereof (or, with respect to any Loan Combination, any of
the related Non-Trust Noteholder(s) 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 Mortgage Loan Seller, the Master Servicer, the
Controlling Class Representative, the Special Servicer, the Trustee, any Fiscal
Agent or any Affiliate thereof (or, with respect to any Loan Combination, any of
the related Non-Trust Noteholder(s) 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, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Controlling Class Representative, the Trustee, any Fiscal
Agent or any Affiliate thereof (or, with respect to any Loan Combination, any of
the related Non-Trust Noteholder(s) or any Affiliate thereof), as the case may
be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": (a) Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I 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 the Master
Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the Trust Fund,
delivered to the Trustee (and, if a Loan Combination is involved, to the related
Non-Trust Noteholder(s)), provided that (i) such REMIC does not receive or
derive any income from such Person and (ii) the relationship between such Person
and such REMIC is at arm's length, all within the meaning of Treasury
regulations Section 1.856-4(b)(5), or (b) any other Person upon receipt by the
Trustee (and, if a Loan Combination is involved, by the related Non-Trust
Noteholder(s)) of an Opinion of Counsel, which shall be at no expense to the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Trust Fund, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
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Code, or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property, due to such Person's failure to be treated
as an Independent Contractor.
"Initial Form 8-K Current Reports": As defined in Section 8.16.
"Initial Purchaser": Each of MLPF&S and Countrywide Securities.
"Institutional Accredited Investor" or "IAI": 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, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, 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(d).
"Interest Accrual Period": With respect to any Distribution Date,
except with respect to the Class A-3FL Certificates and the Class AN-FL
Certificates prior to a Class A-3FL Distribution Conversion or a Class AN-FL
Distribution Conversion, as the case may be, the calendar month immediately
preceding the calendar month in which such Distribution Date occurs. For
purposes of determining Class A-3FL Interest Distribution Amounts and Class
A-3FL Floating Swap Payments or Class AN-FL Interest Distribution Amounts and
Class AN-FL Floating Swap Payments, for any Distribution Date and any Class
A-3FL Swap Payment Date or Class AN-FL Swap Payment Date, as the case may be,
related thereto based upon the confirmation under the related Swap Agreement,
the Interest Accrual Period will begin on and include the 12th day of the month
preceding the month in which the subject Distribution Date occurs (or, in the
case of the first Distribution Date, will begin on and include the Closing Date)
and will end on and include the 11th day of the month in which the subject
Distribution Date occurs; provided that, if a Class A-3FL Distribution
Conversion or a Class AN-FL Distribution Conversion is in effect with respect to
the subject Distribution Date, then the Interest Accrual Period applicable to
the Class A-3FL Interest Distribution Amount or the Class AN-FL Interest
Distribution Amount, as the case may be, for such Distribution Date will be the
same as the Interest Accrual Period with respect to the Class A-3FL REMIC II
Regular Interest or the Class AN-FL REMIC II Regular Interest, as the case may
be, for such Distribution Date.
"Interest Reserve Account": The segregated account (which may be a
sub-account of the Distribution Account) created and maintained by the Trustee
pursuant to Section 3.04(c) in trust for Certificateholders, which shall be
entitled "LaSalle Bank National Association, as Trustee, on behalf of and in
trust for the registered holders of ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs in February of each year subsequent
to 2006 and in January of each year subsequent to 2006 that is not a leap year,
an amount equal to one day's interest at the related Net Mortgage Rate on the
related Stated Principal Balance as of the Due Date in the month in which such
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Distribution Date occurs (but prior to the application of any amounts owed on
such Due Date), to the extent a Periodic Payment or P&I Advance is made in
respect thereof for such Due Date as of the related P&I Advance Date, in the
case of a Periodic Payment, or as of the related Distribution Date, in the case
of a P&I Advance.
"Interest Reserve Loan": Each Trust Mortgage Loan that is an
Actual/360 Mortgage Loan or an Actual/365 Mortgage Loan and each Trust REO Loan
that relates to an Actual/360 Mortgage Loan or an Actual/365 Mortgage Loan.
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any related Non-Trust Noteholder, any Holder of a Certificate
or any Affiliate of any such Person.
"Internet Website": Either the Internet website maintained by the
Trustee (located at "xxx.xxxxxxxx.xxx" or such other address as provided to the
parties hereto from time to time) or the Internet website maintained by the
Master Servicer, as the case may be.
"Investment Account": As defined in Section 3.06(a).
"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 either of Fitch or S&P.
"Investment Period": With respect to any Distribution Date and (i)
each of the Collection Account, any Servicing Account, any Reserve Account, any
REO Account and any Loan Combination Custodial Account, the related Collection
Period and (ii) each of the Distribution Account, the Interest Reserve Account,
the Additional Interest Account and the Gain-on-Sale Reserve Account, the
related Trustee Investment Period.
"Investor-Based Exemption": Any of Prohibited Transaction Class
Exemption ("PTCE", 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a
similar exemption.
"Kenwood Towne Centre Controlling Party": The "Directing Co-Lender"
within the meaning of the Kenwood Towne Centre Intercreditor Agreement, which
prior to the occurrence of a Kenwood Towne Centre Control Appraisal Event (and
for so long as it is continuing) with respect to the Kenwood Towne Centre B-Note
Non-Trust Loan, shall be, as of any date of determination, the holder of the
Kenwood Towne Centre B-Note Non-Trust Loan, and, following the occurrence of a
Kenwood Towne Centre Control Appraisal Event (and for so long as it is
continuing) with respect to the Kenwood Towne Centre B-Note Non-Trust Loan,
shall be the Controlling Class Representative.
"Kenwood Towne Centre Control Appraisal Event": The existence of a
"Note B Appraisal Reduction Period" within the meaning of the Kenwood Towne
Centre Intercreditor Agreement.
"Kenwood Towne Centre Intercreditor Agreement": The Co-Lender
Agreement, dated February 7, 2006, between the Trust as holder of the Kenwood
Towne Centre Trust Mortgage Loan and the holders of the Kenwood Towne Centre
Non-Trust Loan.
"Kenwood Towne Centre Loan Combination": Collectively, the Kenwood
Towne Centre Trust Mortgage Loan and the Kenwood Towne Centre B-Note Non-Trust
Loan. The term "Kenwood Towne Centre Loan Combination" shall include any
successor REO Loans with respect to the Kenwood Towne Centre Trust Mortgage Loan
and the Kenwood Towne Centre B-Note Non-Trust Loan.
"Kenwood Towne Centre Mortgaged Property": The Mortgaged Property
identified on the Mortgage Loan Schedule as Xxxxxxx Xxxxx Xxxxxx.
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"Xxxxxxx Xxxxx Xxxxxx REO Property": With respect to the Kenwood
Towne Centre Loan Combination, the related Loan Combination REO Property.
"Kenwood Towne Centre Specially Designated Servicing Actions":
Proposed actions of the Special Servicer in respect of which the consent of the
Kenwood Towne Centre Controlling Party is required, as set forth in Section 4 of
the Kenwood Towne Centre Intercreditor Agreement.
"Kenwood Towne Centre B-Note Non-Trust Loan": The Mortgage Loan,
other than the Kenwood Towne Centre Trust Mortgage Loan, that is secured by the
same Mortgage encumbering the Kenwood Towne Centre Mortgaged Property as the
Kenwood Towne Centre Trust Mortgage Loan, and that is subordinate in right of
payment and in other respects to the Kenwood Towne Centre Trust Mortgage Loan.
"Kenwood Towne Centre B-Note Non-Trust Loan Holder": The holder of
the Kenwood Towne Centre B-Note Non-Trust Loan.
"Kenwood Towne Centre Trust Mortgage Loan": The Mortgage Loan
secured by the Kenwood Towne Centre Mortgaged Property and included in the Trust
Fund.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, and not previously recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, other than Penalty Interest, whether as Insurance Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Scheduled Payment
(other than a Balloon Payment) or an Assumed Periodic Payment in respect of the
predecessor Mortgage Loan or of an Assumed Periodic Payment in respect of such
REO Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"LIBOR": The rate specified in Section 1.03(a) or the rate
calculated by the Trustee in accordance with Section 1.03(b), as applicable
under the circumstances.
"LIBOR Business Day": Any day on which commercial banks are open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London, England and/or
New York,
New York.
"LIBOR Determination Date": For purposes of calculating LIBOR in any
particular calendar month, the second LIBOR Business Day prior to the
commencement of the Interest Accrual Period in such calendar month; provided
that, to the extent that the calculation of LIBOR in accordance with Section
1.03(b) requires a determination made as of
New York City time, the subject
LIBOR Determination Date must be a day on which commercial banks are open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London, England and
New York,
New York.
"Liquidation Event": 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 Mortgage Loan Seller
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pursuant to the applicable Mortgage Loan Purchase Agreement; (iv) such Mortgage
Loan is purchased by the Plurality Subordinate Certificateholder, the Special
Servicer or any assignee thereof pursuant to Section 3.18 or by the Master
Servicer, the Special Servicer or the Plurality Subordinate Certificateholder
pursuant to Section 9.01; (v) in the case of an A-Note Trust Mortgage Loan, such
Mortgage Loan is purchased by the related B-Note Loan Holder pursuant to the
related Loan Combination Intercreditor Agreement; (vi) such Mortgage Loan is
purchased by a mezzanine lender pursuant to the related mezzanine intercreditor
agreement; or (vii) such Mortgage Loan is removed from the Trust by the Sole
Certificate Owner in connection with an exchange of all of the outstanding
Certificates owned by the Sole Certificate Owner for all of the Trust Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to Section
9.01. With respect to any REO Property (and the related REO Loan), any of the
following events: (i) a Final Recovery Determination is made with respect to
such REO Property; (ii) such REO Property is purchased or replaced by a Mortgage
Loan Seller pursuant to the applicable Mortgage Loan Purchase Agreement; (iii)
such REO Property is purchased by the Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder pursuant to Section 9.01; or (iv)
such REO Property is removed from the Trust Fund by the Sole Certificate Owner
in connection with an exchange of all of the outstanding Certificates owned by
the Sole Certificate Owner for all of the Trust Mortgage Loans and each REO
Property remaining in the Trust Fund pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged 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 Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Trust Defaulted Mortgage Loan by the
Plurality Subordinate Certificateholder, the Special Servicer or any assignee
thereof pursuant to Section 3.18; (v) the repurchase or substitution of a Trust
Mortgage Loan or REO Property by a Mortgage Loan Seller, pursuant to the
applicable Mortgage Loan Purchase Agreement; (vi) the purchase of a Trust
Mortgage Loan or REO Property by the Master Servicer, the Special Servicer, or
the Plurality Subordinate Certificateholder pursuant to Section 9.01; (vii) the
purchase of an A-Note Trust Mortgage Loan by the related B-Note Loan Holder
pursuant to the related Loan Combination Intercreditor Agreement; (viii) the
purchase of a Mortgage Loan by a mezzanine lender pursuant to the related
mezzanine intercreditor agreement; or (ix) the removal of a Mortgage Loan or REO
Property from the Trust Fund by the Sole Certificate Owner in connection with an
exchange of all of the outstanding Certificates owned by the Sole Certificate
Owner for all of the Trust Mortgage Loans and each REO Property remaining in the
Trust Fund pursuant to Section 9.01.
"Loan Combination": Collectively, each A-Note Trust Mortgage Loan
and the related B-Note Non-Trust Loan. The term "Loan Combination" shall include
any successor REO Loan with respect to the applicable Mortgage Loans comprising
such Loan Combination.
"Loan Combination Controlling Party": Either of the Kenwood Towne
Centre Loan Combination Controlling Party or the 00 Xxxxx Xxxxxx Loan
Combination Controlling Party, as the case may be.
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"Loan Combination Control Appraisal Event": Either of a Kenwood
Towne Centre Loan Combination Control Appraisal Event or a 00 Xxxxx Xxxxxx Loan
Combination Control Appraisal Event, as the case may be.
"Loan Combination Custodial Account": With respect to any Loan
Combination, the separate account (which may be a sub-account of the Collection
Account) created and maintained by the Master Servicer pursuant to Section
3.04(h) and held on behalf of the Certificateholders and the related Non-Trust
Noteholder, which shall be entitled substantially as follows: "Wachovia Bank,
National Association, as Master Servicer for LaSalle Bank National Association,
as Trustee, on behalf of and in trust for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates,
Series 2006-1, and [name of the related Non-Trust Noteholder(s)], as their
interests may appear". Any such account shall be an Eligible Account.
"Loan Combination Intercreditor Agreement": With respect to each
Loan Combination, each intercreditor agreement in effect between (i) the Trust
Fund as holder of the related Trust Mortgage Loan and (ii) the related Non-Trust
Noteholder(s).
"Loan Combination Mortgaged Property": The Mortgaged Property
securing a Loan Combination.
"Loan Combination REO Account": With respect to each Loan
Combination, a segregated account or accounts created and maintained by the
Special Servicer pursuant to Section 3.16 on behalf of the Trustee, in trust for
the Certificateholders, and the related Non-Trust Noteholder, which shall be
entitled "Midland Loan Services, Inc., as Special Servicer for LaSalle Bank
National Association, as Trustee in trust for registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates,
Series 2006-1, and [name of the related Non-Trust Noteholder(s)], as their
interests may appear".
"Loan Combination REO Property": With respect to each Loan
Combination, the related Mortgaged Property if such Mortgaged Property is
acquired on behalf and in the name of the Trust Fund, for the benefit of the
Certificateholders, and the related Non-Trust Noteholder(s), as their interests
may appear, 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 such Loan Combination.
"Loan Combination Specially Designated Servicing Actions": Either of
a Kenwood Towne Centre Specially Designated Servicing Action or a 00 Xxxxx
Xxxxxx Specially Designated Servicing Action, as the case may be.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Trust Mortgage Loans that
are Group 1 Mortgage Loans and any successor Trust REO Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans belonging to Loan
Group 1, taking into account adjustments in accordance with Section 1.02.
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"Loan Group 2": Collectively, all of the Trust Mortgage Loans that
are Group 2 Mortgage Loans and any successor Trust REO Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to the Trust Mortgage Loans and Trust REO Loans belonging to Loan
Group 2, taking into account adjustments in accordance with Section 1.02.
"Loan-to-Value Ratio": With respect to any Trust Mortgage Loan, as
of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the then current principal amount of such Mortgage Loan.
as adjusted in accordance with the considerations specified in Section
3.08(a)(i), and the denominator of which is the Appraised Value of the related
Mortgaged Property.
"Master Servicer": Wachovia Bank, National Association, its
successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicer Indemnification Agreement": That certain Master
Servicer Indemnification Agreement, dated as of March 22, 2006, between the
initial Master Servicer, the Trustee, the Underwriters and the Initial
Purchasers.
"Master Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that
is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Master Servicer or any
Servicing Representative of the Master Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust [ITEM
1.01 ON FORM 8-K];
(ii) the termination of a definitive agreement that is material
to the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the Master
Servicer or any Servicing Representative of the Master Servicer is a party
to such agreement or has entered into such agreement on behalf of the
Trust [ITEM 1.02 ON FORM 8-K];
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan [ITEM 1.03(a)
ON FORM 8-K];
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(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan [ITEM 1.03(b)
ON FORM 8-K];
(v) any resignation, removal, replacement or substitution of (A)
the Master Servicer or (B) any Servicing Representative of the Master
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB [ITEM 6.02 ON FORM 8-K];
(vi) any appointment of (A) a new Master Servicer or (B) any new
Servicing Representative of the Master Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB [ITEM 6.02 ON
FORM 8-K];
(vii) any nonpublic disclosure, by the Master Servicer or any
Servicing Representative of the Master Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required
pursuant to this Agreement) that is required to be disclosed by Regulation
FD (17 C.F.R. 243.100 through 243.103) [ITEM 7.01 ON FORM 8-K];
(viii) any other information of importance to Certificateholders
(determined by the Master Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement, the CMSA Special Servicer Loan File or any
other report to be delivered or otherwise made available to
Certificateholders hereunder, (B) the Master Servicer has determined, in
accordance with the Servicing Standard, could have an adverse effect on
payments to any Class of Certificateholders, and (C) is directly related
to a Performing Serviced Mortgage Loan [ITEM 8.01 ON FORM 8-K];
(ix) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Master Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Performing Serviced Mortgage Loan [ITEM 2 ON
FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(x) the receipt by or on behalf of the Master Servicer or any
Servicing Representative of the Master Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding a Significant Obligor with respect to a Performing Serviced
Mortgage Loan [ITEM 6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K];
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement, whether the Master Servicer has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Trust, (B)
the Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) the
Special Servicer, (F) any Servicing Representative of the Master Servicer
that constitutes a Servicer
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contemplated by Item 1108(a)(3) of Regulation AB or (G) any Significant
Obligor [GENERAL INSTRUCTION J TO FORM 10-K]; and
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between Countrywide or the Trust, on the one
hand, and the Master Servicer or any Servicing Representative of the
Master Servicer, on the other hand [GENERAL INSTRUCTION J TO FORM 10-K].
"Master Servicing Fee": With respect to each Mortgage Loan and any
successor REO Loan with respect thereto, the fee payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Trust Mortgage
Loan, the per annum rate equal to the sum of the rates set forth under the
columns "Master Servicing Fee Rate" and "Primary Servicing Fee Rate" on the
Mortgage Loan Schedule, and with respect to each Non-Trust Loan, or any
successor REO Loan with respect thereto, the per annum rate at which any related
Master Servicing Fee is permitted to be calculated under the related Loan
Combination Intercreditor Agreement.
"Material Debtor": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) each of the parties to this Agreement;
(iv) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(v) any Significant Obligor;
(vi) any Enhancement/Support Provider; and
(vii) any other material party contemplated by Item 1100(d)(1) of
Regulation AB relating to the relating to the Subject Securitization
Transaction.
"Material Litigant": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) the Depositor;
(iv) the Trustee;
(v) the Master Servicer;
(vi) the Special Servicer;
(vii) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
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(viii) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB; and
(ix) any other party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Merrill Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of March 22, 2006, between the Depositor and
MLMLI and relating to the transfer of the Merrill Trust Mortgage Loans to the
Depositor.
"Merrill Trust Mortgage Loans": Each of the Trust Mortgage Loans
transferred and assigned to the Depositor pursuant to the Merrill Mortgage Loan
Purchase Agreement.
"MLMLI": Xxxxxxx Xxxxx Mortgage Lending, Inc. or its successor in
interest.
"MLPF&S": Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a
Delaware corporation, or its successor in interest.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage File": With respect to any Trust Mortgage Loan and, in the
case of any Trust Mortgage Loan that is part of a Loan Combination, also with
respect to the related Non-Trust Loan(s), collectively the following documents
(which, in the case of a Loan Combination, except for the Mortgage Notes
referred to in clause (i) of this definition and any modifications thereof
referred to in clause (vi) of this definition, relate to the entire Loan
Combination):
(i) (A) the original executed Mortgage Note for such Trust
Mortgage Loan, including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, or in blank, and (B) in the case
of a Loan Combination, a copy of the executed Mortgage Note for each
related Non-Trust Loan;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name, if the assignment is delivered in
blank, and any missing recording information)
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or a certified copy of that assignment as sent for recording, of (A) the
Mortgage, (B) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (C) any other recorded document relating
to such Trust Mortgage Loan otherwise included in the Mortgage File, in
favor of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1 (or, in the case of a Loan
Combination, in favor of LaSalle Bank National Association, as trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1, and in its
capacity as lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the subject Trust Mortgage Loan (to the extent not already assigned
pursuant to clause (iv) above), in favor of LaSalle Bank National
Association, as trustee for the registered holders of ML-CFC Commercial
Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates,
Series 2006-1 (or, in the case of a Loan Combination, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, and in its capacity as lead lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Trust Mortgage Loan has been
assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or a copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company or
an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of such Trust Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an effective UCC
Financing Statement in favor of the Mortgage Loan Seller on record with
the applicable public office for UCC Financing Statements, a UCC Financing
Statement assignment, in form suitable for filing in favor of LaSalle Bank
National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, as assignee (or, in the case of a Loan
Combination, in favor of LaSalle Bank National Association, as trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1, and in its
capacity as lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor (including, in the case of a
Trust Mortgage Loan that is part of a Loan Combination, any related Loan
Combination Intercreditor Agreement) and any intercreditor agreement
relating to mezzanine debt related to the Mortgagor;
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(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit (which letter of credit
shall not be delivered in original form to the Trustee but rather to the
Master Servicer), in each case relating to such Trust Mortgage Loan; and
(xii) with respect to a Trust Mortgage Loan secured by a
hospitality property, a signed copy of any franchise agreement and/or
franchisor comfort letter;
provided that 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 the Custodian for documents described in clause
(vi) of this definition, shall be deemed to include only such documents to the
extent the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Any Trust Mortgage Loan or any Non-Trust Loan. As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File or
otherwise held on behalf of the Trust and/or any Non-Trust Noteholder, as
applicable.
"Mortgage Loan Purchase Agreement": Any of the Countrywide Mortgage
Loan Purchase Agreement, the Merrill Mortgage Loan Purchase Agreement or the
Eurohypo Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Trust Mortgage Loans
transferred on the Closing Date to the Trustee as part of REMIC I, respectively,
attached hereto as Schedule I and in a computer readable format. Such list shall
set forth the following information with respect to each Trust Mortgage Loan:
(i) the loan identification number (as specified in Annex A-1 to
the Prospectus);
(ii) the street address (including city, county, state and zip
code) and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the Net Mortgage Rate as of the Cut-off Date and the
original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining term
to stated maturity and (C) Stated Maturity Date;
(vii) the original and remaining amortization term;
(viii) whether the Trust Mortgage Loan is secured by a Ground
Lease;
(ix) the Master Servicing Fee Rate;
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(x) whether such Trust Mortgage Loan is an ARD Loan and if so
the Anticipated Repayment Date and Additional Interest Rate
for such ARD Loan;
(xi) the related Mortgage Loan Seller and, if different, the
related originator;
(xii) whether such Trust Mortgage Loan is insured by an
environmental policy;
(xiii) whether such Trust Mortgage Loan is cross-defaulted or
cross-collateralized with any other Trust Mortgage Loan;
(xiv) whether such Trust Mortgage Loan is a Defeasance Loan;
(xv) whether the Trust Mortgage Loan is secured by a letter of
credit;
(xvi) whether payments on such Trust Mortgage Loan are made to a
lock-box;
(xvii) the amount of any Reserve Funds escrowed in respect of each
Trust Mortgage Loan;
(xviii) the number of days of any grace period permitted in respect
of any Periodic Payment due under such Trust Mortgage Loan;
(xix) the property type of the related Mortgaged Property as
reported in the rent roll;
(xx) the original principal balance of such Trust Mortgage Loan;
(xxi) the interest accrual basis of such Trust Mortgage Loan;
(xxii) the primary servicing fee rate, if any, for such Trust
Mortgage Loan; and
(xxiii) the applicable Loan Group to which the Trust Mortgage Loan
belongs.
"Mortgage Loan Seller": Any of MLMLI, Countrywide or Eurohypo.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Trust Mortgage Loans and
any Trust REO Loans. The Non-Trust Loans shall not constitute part of the
Mortgage Pool.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest 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; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
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"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has not signed the related Mortgage Note but
owns an interest in the related Mortgaged Property, which interest has been
encumbered to secure such Mortgage Loan, and any Person that has acquired the
related Mortgaged Property and assumed the obligations of the original obligor
under the Mortgage Note, but excluding guarantors that do not own the related
Mortgaged Property.
"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 on the Trust Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Collection Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls on the Trust Mortgage Loans.
"Net Investment Earnings": With respect to each of the Collection
Account, the Interest Reserve Account, any Servicing Account, any Reserve
Account, any REO Account, the Distribution Account, any Loan Combination
Custodial Account, the Additional Interest Account, the Floating Rate Account
and the Gain-on-Sale Reserve Account, for any Investment Period, the amount, if
any, by which the aggregate of all interest and other income realized during
such Investment Period on funds held in such account, exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (other than losses
of what would have otherwise constituted interest or other income earned on such
funds).
"Net Investment Loss": With respect to each of the Collection
Account, any Servicing Account, any Reserve Account, any REO Account, the
Distribution Account, any Loan Combination Custodial Account, the Interest
Reserve Account, the Additional Interest Account, the Floating Rate Account and
the Gain-on-Sale Reserve Account, for any Investment Period, the amount by which
the aggregate of all losses, if any, incurred during such Investment Period in
connection with the investment of funds held in such account in accordance with
Section 3.06 (other than losses of what would have otherwise constituted
interest or other income earned on such funds), exceeds the aggregate of all
interest and other income realized during such Investment Period on such funds.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Trust Mortgage Loan (or any successor
Trust REO Loan with respect thereto) that accrues (or is deemed to accrue)
interest on a 30/360 Basis, for any Distribution Date, an annual rate
equal to the Net Mortgage Rate for such Trust Mortgage Loan as of the
Closing Date (without regard to any modification, waiver or amendment of
the terms of such Trust Mortgage Loan subsequent to the Closing Date);
(B) With respect to any Trust Mortgage Loan (or any successor
Trust REO Loan with respect thereto) that accrues interest on an
Actual/360 Basis, for any Distribution Date, an annual rate equal to
twelve times a fraction, expressed as a percentage:
(1) the numerator of which fraction is, subject to
adjustment as described below in this definition, an
amount of interest equal to the product of (a) the
number of days in the calendar month preceding the
month in which such Distribution Date occurs,
multiplied by (b) the Stated Principal Balance of
such Trust Mortgage Loan (or such Trust REO Loan)
immediately preceding such Distribution Date,
multiplied by (c) 1/360, multiplied by (d) the Net
Mortgage Rate for such Trust Mortgage Loan as
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of the Closing Date (without regard to any
modification, waiver or amendment of the terms of
such Trust Mortgage Loan subsequent to the Closing
Date); and
(2) the denominator of which fraction is the Stated
Principal Balance of such Trust Mortgage Loan (or
such Trust REO Loan) immediately preceding that
Distribution Date; and
(C) With respect to any Trust Mortgage Loan (or any successor
Trust REO Loan with respect thereto) that accrues interest on an
Actual/365 Basis, for any Distribution Date, an annual rate equal to
twelve times a fraction, expressed as a percentage:
(1) the numerator of which fraction is, subject to
adjustment as described below in this definition, an
amount of interest equal to the product of (a) the
number of days in the calendar month preceding the
month in which such Distribution Date occurs,
multiplied by (b) the Stated Principal Balance of
such Trust Mortgage Loan (or such Trust REO Loan)
immediately preceding such Distribution Date,
multiplied by (c) 1/365, multiplied by (d) the Net
Mortgage Rate for such Trust Mortgage Loan as of the
Closing Date (without regard to any modification,
waiver or amendment of the terms of such Trust
Mortgage Loan subsequent to the Closing Date); and
(2) the denominator of which fraction is the Stated
Principal Balance of such Trust Mortgage Loan (or
such Trust REO Loan) immediately preceding that
Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs during January, except during a leap year, or February of any year
subsequent to 2006, then the amount of interest referred to in the fractional
numerators described in clauses (B)(1) and (C)(1) above will be decreased to
reflect any Interest Reserve Amounts with respect to the subject Trust Mortgage
Loan (or Trust REO Loan) transferred from the Distribution Account to the
Interest Reserve Account in such calendar month. Furthermore, if the subject
Distribution Date occurs during March of any year subsequent to 2006, then the
amount of interest referred to in the fractional numerator described in clause
(B)(1) above will be increased to reflect any Interest Reserve Amounts with
respect to the subject Trust Mortgage Loan (or Trust REO Loan) transferred from
the Interest Reserve Account to the Distribution Account for distribution on
such Distribution Date.
"Net Mortgage Rate": With respect to any Trust Mortgage Loan or any
Trust REO Loan, as of any date of determination, a rate per annum equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable
Master Servicing Fee Rate; and, with respect to any Non-Trust Loan or any
successor REO Loan with respect thereto, the related Mortgage Rate minus the
applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": With respect to any Mortgaged
Property, for any twelve-month period, the total operating revenues derived from
such Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period, other than
(i) non-cash items such as depreciation, (ii) amortization, (iii) actual capital
expenditures and (iv) debt service on the related Mortgage Loan.
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"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer, including any lease renewed, modified or extended on
behalf of the Trustee for the benefit of the Certificateholders and, in the case
of a Loan Combination, the related Non-Trust Noteholder(s).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance (including
any Workout-Delayed Reimbursement Amount that subsequently becomes a
Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance (including any
Workout-Delayed Reimbursement Amount that subsequently becomes a Nonrecoverable
Servicing Advance).
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made, including any previously made P&I Advance that constitutes
a Workout-Delayed Reimbursement Amount, in respect of any Trust Mortgage Loan or
Trust REO Loan by the Master Servicer, the Trustee or any Fiscal Agent, as the
case may be, that, as determined by the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent, as applicable, in accordance with the Servicing
Standard (in the case of the Master Servicer or the Special Servicer) or its
good faith judgment (in the case of the Trustee or any Fiscal Agent) with
respect to such P&I Advance (together with any accrued and unpaid interest
thereon), will not be ultimately recoverable from Late Collections, REO
Revenues, Insurance Proceeds or Liquidation Proceeds, or any other recovery on
or with respect to such Trust Mortgage Loan or Trust REO Loan (or, in the case
of a Trust Mortgage Loan that is a part of a Loan Combination, on or with
respect to the related Loan Combination); provided, however, the Special
Servicer may, at its option, make a determination (which shall be binding upon
the Master Servicer, the Trustee and any Fiscal Agent) in accordance with the
Servicing Standard, that any P&I Advance previously made or proposed to be made,
or any Workout-Delayed Reimbursement Amount previously made, by the Master
Servicer, the Trustee or any Fiscal Agent is a Nonrecoverable P&I Advance and
shall deliver notice of such determination to the Master Servicer, the Trustee
and any Fiscal Agent. In making a recoverability determination, the applicable
Person will be entitled to consider (among other things) the obligations of the
Mortgagor 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
Person's assumptions (consistent with the Servicing Standard) regarding the
possibility and effects of future adverse change with respect to such Mortgaged
Properties, to estimate and consider (among other things) future expenses, to
estimate and consider (consistent with the Servicing Standard) (among other
things) the timing of recoveries, and to consider the existence and amount of
any outstanding Nonrecoverable Advances the reimbursement of which is being
deferred pursuant to Section 4.03(f), any outstanding Workout Delayed
Reimbursement Amounts and any Unliquidated Advances. In addition, any such
Person may update or change its recoverability determinations at any time and,
consistent with the Servicing Standard, may obtain from the Special Servicer any
reasonably required analysis, Appraisals or market value estimates or other
information in the Special Servicer's possession for such purposes. Absent bad
faith, the Master Servicer's, the Special Servicer's, the Trustee's or any
Fiscal Agent's determination as to the recoverability of any P&I Advance shall
be conclusive and binding on the Certificateholders. The Trustee and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability determination
made by the Master Servicer and the Master Servicer, the Trustee and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability determination
made by the Special Servicer and shall be required to act in accordance with
such determination.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made, including any previously made Servicing Advance
that constitutes a Workout-Delayed Reimbursement Amount, in respect of a
Mortgage Loan or REO Loan by the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, that, as determined by the
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Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as
applicable, in accordance with the Servicing Standard (in the case of the Master
Servicer or the Special Servicer) or its good faith judgment (in the case of the
Trustee or any Fiscal Agent) with respect to such Servicing Advance (together
with any accrued and unpaid interest thereon), will not be ultimately
recoverable from Late Collections, REO Revenues, Insurance Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or the
related REO Property; provided, however, the Special Servicer may, at its
option, make a determination (which shall be binding upon the Master Servicer,
the Trustee and any Fiscal Agent) in accordance with the Servicing Standard,
that any Servicing Advance previously made or proposed to be made, or any
Workout-Delayed Reimbursement Amount previously made, by the Master Servicer,
the Trustee or any Fiscal Agent is a Nonrecoverable Servicing Advance and shall
deliver notice of such determination to the Master Servicer, the Trustee and any
Fiscal Agent. In making such recoverability determination, such Person will be
entitled to consider (among other things) only the obligations of the Mortgagor
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 (consistent with the Servicing Standard) 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 (consistent with the Servicing Standard) (among other things) the
timing of recoveries, and to consider the existence and amount of any
outstanding Nonrecoverable Advances the reimbursement of which is being deferred
pursuant to Section 4.03(f), any outstanding Workout Delayed Reimbursement
Amounts and any Unliquidated Advances. In addition, any such Person may update
or change its recoverability determinations at any time and, consistent with the
Servicing Standard, may obtain from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for such purposes. Absent bad faith, the Master
Servicer's, the Special Servicer's, the Trustee's or any Fiscal Agent's
determination as to the recoverability of any Servicing Advance shall be
conclusive and binding on the Certificateholders. The Trustee and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability determination
made by the Master Servicer and the Master Servicer, the Trustee and any Fiscal
Agent shall be entitled to conclusively rely on any recoverability determination
made by the Special Servicer and shall be required to act in accordance with
such determination.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, Class AN-FL, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class Z, Class
R-I or Class R-II Certificate.
"Non-Trust Loan" Any B-Note Non-Trust Loan.
"Non-Trust Noteholder": The holder of a Non-Trust Loan.
"Non-United States Securities Person": Any Person other than a
United States Securities Person.
"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 the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the Master Servicer or the Special
Servicer) acceptable to and delivered to the Trustee or the Master Servicer, as
the case may be, except that any opinion of counsel relating to (a) the
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qualification of REMIC I or REMIC II as a REMIC; (b) the qualification of any of
Grantor Trust A-3FL, Grantor Trust AN-FL or Grantor Trust Z as a grantor trust;
(c) compliance with REMIC Provisions; or (d) the resignation of the Master
Servicer or Special Servicer pursuant to Section 6.04 must be an opinion of
counsel who is in fact Independent of the Master Servicer, the Special Servicer
or the Depositor, as applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the Class A-3FL REMIC II Regular Interest or the
Class AN-FL REMIC II Regular Interest, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement. The Class A-3FL Certificates and the Class A-3FL REMIC II Regular
Interest will have the same Original Class Principal Balance, and the Class
AN-FL Certificates and the Class AN-FL REMIC II Regular Interest will have the
same original class Principal Balance.
"Original Notional Amount": $2,141,833,151, the total original
notional amount of the Class X Certificates.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date,
5.414% per annum;
(ii) the Class A-2 Certificates for any Distribution Date, a
per annum rate equal to the lesser of (a) 5.439 and (b)
the Weighted Average Net Mortgage Pass-Through Rate for
such Distribution Date;
(iii) the Class A-3 Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.051%;
(iv) the Class A-3FL REMIC II Regular Interest, for any
Distribution Date, a per annum rate equal to the lesser of
(a) 5.479 and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(v) the Class A-3B Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.052%;
(vi) the Class A-SB Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.077%;
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(vii) the Class A-4 Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.101%;
(viii) the Class A-1A Certificates for any Distribution Date, a
per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.102%;
(ix) the Class AM Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.051%;
(x) the Class AJ Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date minus 0.002%;
(xi) the Class AN-FL REMIC II Regular Interest, for any
Distribution Date, a per annum rate equal to the lesser of
(a) 5.479% and (b) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xii) the Class B Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xiii) the Class C Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xiv) the Class D Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xv) the Class E Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xvi) the Class F Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xvii) the Class G Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xviii) the Class H Certificates for any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date;
(xix) the Class J Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xx) the Class K Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
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(xxi) the Class L Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxii) the Class M Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxiii) the Class N Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxiv) the Class P Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxv) the Class Q Certificates for any Distribution Date, a per
annum rate equal to the lesser of (a) 5.199% and (b) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xxvi) the Class X Certificates, for any Distribution Date, a
rate equal to the weighted average of the Class X Strip
Rates for the Class X Components for such Distribution
Date (weighted on the basis of the respective Component
Notional Amounts of the Class X Components outstanding
immediately prior to such Distribution Date);
(xxvii) with respect to the Class A-3FL Certificates, (A) for any
Distribution Date with respect to which a Class A-3FL
Distribution Conversion does not exist, the per annum
rate, expressed as a percentage, equal to the applicable
value of LIBOR specified in or calculated in accordance
with Section 1.03, plus 0.200% per annum, and (B) for any
Distribution Date with respect to which a Class A-3FL
Distribution Conversion does exist, the Pass-Through Rate
for the Class A-3FL REMIC II Regular Interest for that
Distribution Date; and
(xxviii) with respect to the Class AN-FL Certificates, (A) for any
Distribution Date with respect to which a Class AN-FL
Distribution Conversion does not exist, the per annum
rate, expressed as a percentage, equal to the applicable
value of LIBOR specified in or calculated in accordance
with Section 1.03, plus 0.270% per annum, and (B) for any
Distribution Date with respect to which a Class AN-FL
Distribution Conversion does exist, the Pass-Through Rate
for the Class AN-FL REMIC II Regular Interest for that
Distribution Date.
"P&I Advance": As to any Trust Mortgage Loan or Trust REO Loan, any
advance made by the Master Servicer, the Trustee or any Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Interest": With respect to any Mortgage Loan (or any
successor REO Loan with respect thereto), any amounts collected thereon, other
than late payment charges, Additional Interest,
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Prepayment Premiums or Yield Maintenance Charges, that represent penalty
interest (arising out of a default) in excess of interest on such Mortgage Loan
(or such successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate or
any Class A-3FL Certificate or Class AN-FL 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 Original
Class Principal Balance or Original Notional Amount, as the case may be, of the
relevant Class. With respect to a Residual Certificate or Class Z Certificate,
the percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.16(b).
"Performing Party": As defined in Section 8.16(b).
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage Loan
(exclusive of Additional Interest), including any Balloon Payment, that is
actually payable by the related Mortgagor 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
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee or
one of its Affiliates if otherwise qualifying hereunder):
(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 (having original maturities of not more
than 365 days), provided such obligations are backed by the full faith and
credit of the United States; such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable; if such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index. In addition, such obligations may not
have a rating from S&P with an "r" highlighter;
(ii) repurchase agreements or obligations with respect to any
security described in clause (i) above (having original maturities of not
more than 365 days), provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such obligations are
rated in the highest rating categories of each of DBRS (if then rated by
DBRS and, if not so rated, then the equivalent rating by two other
nationally recognized statistical rating organizations, which may include
Fitch and S&P), S&P and Fitch or such lower rating as will not result in
an Adverse Rating Event, as evidenced in writing by the Rating Agencies;
in addition, it may not have a rating from S&P with an "r" highlighter and
its terms must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change; interest may either be fixed or
variable; if such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
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(iii) federal funds, unsecured uncertified certificates of
deposit, time deposits, demand deposits and bankers' acceptances of any
bank or trust company organized under the laws of the United States or any
state thereof (having original maturities of not more than 365 days), the
short term obligations of which are rated in the highest rating categories
of each of DBRS (if then rated by DBRS and, if not so rated, then the
equivalent rating by two other nationally recognized statistical rating
organizations, which may include Fitch and S&P), S&P and Fitch or such
lower rating as will not result in an Adverse Rating Event, as evidenced
in writing by the Rating Agencies; in addition, it may not have a rating
from S&P with an "r" highlighter and its terms should have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change; interest may either be fixed or variable; if such interest is
variable, interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that index;
(iv) commercial paper (including both non-interest bearing
discount obligations and interest-bearing obligations and having original
maturities of not more than 365 days) of any corporation or other entity
organized under the laws of the United States or any state thereof which
is rated in the highest rating category of each of DBRS (if then rated by
DBRS and, if not so rated, then the equivalent rating by two other
nationally recognized statistical rating organizations, which may include
Fitch and S&P), S&P and Fitch or such lower rating as will not result in
an Adverse Rating Event, as evidenced in writing by the Rating Agencies;
the commercial paper by its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change; in
addition, it may not have a rating from S&P with an "r" highlighter;
interest may either be fixed or variable; if such interest is variable,
interest must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(v) money market funds which are rated in the highest applicable
rating category of each of DBRS (if then rated by DBRS and, if not so
rated, then the equivalent rating by two other nationally recognized
statistical rating organizations, which may include Fitch and S&P), S&P
and Fitch or such lower rating as will not result in an Adverse Rating
Event, as evidenced in writing by the Rating Agencies; in addition, it may
not have a rating from S&P with an "r" highlighter and its terms must have
a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in writing by
each Rating Agency to the Master Servicer, the Special Servicer and the
Trustee;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may 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.
"Permitted Transferee": Any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of any
Residual Certificate may cause either REMIC I or REMIC II to fail to qualify as
a REMIC, (iii) a Disqualified Non-United States Tax Person, (iv) a Disqualified
Partnership or (v) 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.
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"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.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I or REMIC II, the Holder of Certificates holding the largest Percentage
Interest of the related Class of Residual Certificates.
"Plurality Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates of the Controlling Class (or,
if the Controlling Class consists of Book-Entry Certificates, any single
Certificate Owner) (other than any Holder (or Certificate Owner, as the case may
be) which is an Affiliate of the Depositor or a Mortgage Loan Seller) with the
largest percentage of Voting Rights allocated to such Class. With respect to
determining the Plurality Subordinate Certificateholder, the Class A Senior
Certificates collectively shall be deemed to be a single Class of Certificates,
with such Voting Rights allocated among the Holders of Certificates (or
Certificate Owners) of such Classes of Class A Senior Certificates in proportion
to the respective Certificate Principal Balances of such Certificates as of such
date of determination.
"Pool REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Midland
Loan Services, Inc., as Special Servicer, for LaSalle Bank National Association,
as Trustee in trust for the registered holders of ML-CFC Commercial Mortgage
Trust 2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1".
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, (i) each Trust ARD Loan is repaid
on its Anticipated Repayment Date, (ii) no Trust Mortgage Loan will otherwise be
paid prior to maturity and (iii) there will be no extension of maturity for any
Trust Mortgage Loan.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a voluntary Principal Prepayment in full or in part during any
Collection Period, which Principal Prepayment was applied to such Mortgage Loan
following such Mortgage Loan's Due Date in such Collection Period, the amount of
interest (net of the related Master Servicing Fee and, if applicable, any
Additional Interest and Penalty Interest) accrued on the amount of such
Principal Prepayment during the period from and after such Due Date and to but
not including the date such Principal Prepayment was applied to such Mortgage
Loan, to the extent collected (without regard to any related Prepayment Premium
or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in part during
any Collection Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection Period, the
amount of interest, to the extent not collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued (at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate) on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and
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ending on the day immediately preceding such Due Date, inclusive (net of any
portion of that interest that would have constituted Penalty Interest and/or
Additional Interest, if applicable).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Collateral": The Mortgaged Property directly securing a
Crossed Loan and excluding any property as to which the related lien may only be
foreclosed upon by exercise of cross-collateralization provisions.
"Prime Rate": 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
Master Servicer 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 Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Trustee and the Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following (without duplication):
(a) the aggregate of the principal portions of all Periodic
Payments (other than Balloon Payments) and any Assumed Periodic Payments
due or deemed due in respect of the Trust Mortgage Loans for their
respective Due Dates occurring during the related Collection Period, to
the extent paid by the related Mortgagor during or prior to, or otherwise
received during, the related Collection Period or advanced with respect to
such Distribution Date plus, in the case of the initial Distribution Date,
the principal portion of the Additional MLMLI Deposit received from MLMLI;
(b) the aggregate of all Principal Prepayments received on the
Trust Mortgage Loans during the related Collection Period;
(c) with respect to any Trust Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (other than a Principal
Prepayment) made by or on behalf of the related Mortgagor during the
related Collection Period (including any Balloon Payment), net of any
portion of such payment that represents a recovery of the principal
portion of any Periodic Payment (other than a Balloon Payment) due, or the
principal portion of any Assumed Periodic Payment deemed due, in respect
of such Trust Mortgage Loan on a Due Date during or prior to the related
Collection Period and included as part of the Principal Distribution
Amount for such Distribution Date or any prior Distribution Date pursuant
to clause (a) above;
(d) the aggregate of all Liquidation Proceeds, Insurance
Proceeds and, to the extent not otherwise included in clause (a), (b) or
(c) above, payments and revenues that were received on the Trust Mortgage
Loans during the related Collection Period and that were identified and
applied by the Master Servicer and/or Special Servicer as recoveries of
principal of the Trust Mortgage Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Periodic Payment (other than a Balloon Payment) due, or of the
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principal portion of any Assumed Periodic Payment deemed due, in respect
of the related Trust Mortgage Loan on a Due Date during or prior to the
related Collection Period and included as part of the Principal
Distribution Amount for such Distribution Date or any prior Distribution
Date pursuant to clause (a) above;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Periodic Payments deemed due in respect
of the related Trust REO Loans for their respective Due Dates occurring
during the related Collection Period to the extent received (in the form
of REO Revenues or otherwise) during the related Collection Period or
advanced with respect to such Distribution Date;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
Servicer as recoveries of principal of the related Trust REO Loans, in
each case net of any portion of such amounts that represents a recovery of
the principal portion of any Periodic Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Periodic Payment
deemed due, in respect of the related Trust REO Loan or the predecessor
Trust Mortgage Loan on a Due Date during or prior to the related
Collection Period and included as part of the Principal Distribution
Amount for such Distribution Date or any prior Distribution Date pursuant
to clause (a) or (e) above; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution
Amount for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates
(exclusive of the Class A-3FL Certificates and the Class AN-FL
Certificates), the Class A-3FL REMIC II Regular Interest and the Class
AN-FL REMIC II Regular Interest on such immediately preceding Distribution
Date pursuant to Section 4.01;
provided that if any Nonrecoverable Advance or Workout-Delayed Reimbursement
Amount is reimbursed, or interest on any Nonrecoverable Advance is paid, from
collections on the Mortgage Pool received during the related Collection Period
that are allocable as principal, as provided in Section 1.02(a), then the
Principal Distribution Amount for the subject Distribution Date shall be reduced
(to not less than zero) as and to the extent provided in Section 1.02(b); and
provided, further, that if any Recovered Amounts are received during the related
Collection Period, then the Principal Distribution Amount for the subject
Distribution Date shall be increased as and to the extent provided in Section
1.02(c).
Any allocation of the Principal Distribution Amount between Loan
Group 1 and Loan Group 2 for purposes of calculating the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Distribution Amount shall take into
account Section 1.02.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer out of
certain related recoveries pursuant to the third paragraph of Section 3.11(c).
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"Principal Recovery Fee Rate": With respect to all amounts set forth
in the third paragraph of Section 3.11(c), 1.0%.
"Privileged Person": Any Certificateholder, any Certificate Owner,
any prospective transferee of a Certificate or interest therein, any Rating
Agency, any Mortgage Loan Seller, any Non-Trust Noteholder, any Underwriter or
any party hereto; provided that no Certificate Owner or prospective transferee
of a Certificate or an interest therein shall be considered a "Privileged
Person" or be entitled to a password or restricted access as contemplated by
Section 3.15 unless such Person has delivered to the Trustee or the Master
Servicer, as applicable, a certification in the form of Exhibit I-1 or Exhibit
I-2 (or such other form as may be reasonably acceptable to the Trustee or the
Master Servicer, as applicable), as applicable.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated March 22, 2006, as supplemented
by the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated March
22, 2006 of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Trust Mortgage Loan (or Trust
REO Loan), a cash price equal to the outstanding principal balance of such Trust
Mortgage Loan (or Trust REO Loan) as of the date of purchase, together with (a)
all accrued and unpaid interest on such Trust Mortgage Loan (or Trust REO Loan)
at the related Mortgage Rate (other than Additional Interest) to but not
including the Due Date in the Collection Period of purchase, (b) any accrued
interest on P&I Advances (other than Unliquidated Advances in respect of prior
P&I Advances) made with respect to such Trust Mortgage Loan (or Trust REO Loan),
(c) all related and unreimbursed (from collections on such Trust Mortgage Loan
and, if such Trust Mortgage Loan is part of a Loan Combination, any related
Non-Trust Loan (or Trust REO Loan and, if such Trust REO Loan is a successor to
a Trust Mortgage Loan that is part of a Loan Combination, any related REO Loan
that is a successor to a related Non-Trust Loan)) Servicing Advances (together
with Unliquidated Advances) plus any accrued and unpaid interest thereon (other
than on Unliquidated Advances), (d) any reasonable costs and expenses,
including, but not limited to, the cost of any enforcement action (including
reasonable legal fees), incurred by the Master Servicer, the Special Servicer or
the Trust Fund in connection with any such purchase by a Mortgage Loan Seller
(to the extent not included in clause (c) above) and Principal Recovery Fees
payable (to the extent payable pursuant to Section 3.11(c)) with respect to such
Trust Mortgage Loan (or Trust REO Loan), and (e) any other Additional Trust Fund
Expenses in respect of such Trust Mortgage Loan (or Trust REO Loan) (including
any Additional Trust Fund Expenses (which includes Special Servicing Fees and
Workout Fees) previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or from related Insurance Proceeds or
Liquidation Proceeds); provided that the Purchase Price shall not be reduced by
any outstanding P&I Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
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"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A" by
DBRS (if then rated by DBRS and, if not so rated, then the equivalent rating by
two other nationally recognized statistical rating organizations, which may
include Fitch and S&P), "A" by S&P and "A" by Fitch (if rated by Fitch) (or the
obligations of which are guaranteed or backed by a company having such a claims
paying ability) and (ii) with respect to the fidelity bond and errors and
omissions Insurance Policy required to be maintained pursuant to Section
3.07(c), an insurance company that has a claims paying ability rated no lower
than two rating categories (without regard to pluses or minuses or numerical
qualifications) below the rating assigned to the then highest rated outstanding
Certificate, but in no event lower than "A" by DBRS (if then rated by DBRS and,
if not so rated, then the equivalent rating by two other nationally recognized
statistical rating organizations, which may include Fitch and S&P), "A-" by S&P
and "A" by Fitch (if rated by Fitch) (or the obligations of which are guaranteed
or backed by a company having such a claims paying ability) or, in the case of
clauses (i) and (ii), such other rating as each Rating Agency shall have
confirmed in writing will not result in an Adverse Rating Event.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding 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 deleted Trust Mortgage Loan as of the Due Date in the calendar
month during which the substitution occurs; (ii) have a Mortgage Rate not less
than the Mortgage Rate of the deleted Trust Mortgage Loan; (iii) have the same
Due Date as and a grace period no longer than the deleted Trust Mortgage Loan;
(iv) accrue interest on the same basis as the deleted Trust Mortgage Loan (for
example, on the basis of a 360-day year consisting of twelve 30-day months); (v)
have a remaining term to stated maturity not greater than, and not more than two
years less than, the remaining term to stated maturity of the deleted Trust
Mortgage Loan; (vi) have a then current Loan-to-Value Ratio not higher than that
of the deleted Trust Mortgage Loan and a current Loan-to-Value Ratio not higher
than the then current Loan-to-Value Ratio of the deleted Trust Mortgage Loan;
(vii) comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an Environmental Assessment that indicates no adverse environmental
conditions and an engineering report that indicates no adverse physical
condition with respect to the related Mortgaged Property and which will be
delivered as a part of the related Mortgage File; (ix) have a current Debt
Service Coverage Ratio of not less than the greater of the original Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan and the current Debt Service
Coverage Ratio of the deleted Trust Mortgage Loan; (x) be determined by an
Opinion of Counsel (at the applicable Mortgage Loan Seller's expense) to be a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; (xi) not have a maturity date after the date two years prior to the Rated
Final Distribution Date; (xii) not be substituted for a deleted Trust Mortgage
Loan unless the Trustee has received prior confirmation in writing by each
Rating Agency that such substitution will not result in an Adverse Rating Event
(the cost, if any, of obtaining such confirmation to be paid by the applicable
Mortgage Loan Seller); (xiii) have a date of origination that is not more than
12 months prior to the date of substitution; (xiv) have been approved by the
Controlling Class Representative (or, if there is no Controlling Class
Representative then serving, by the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class), which
approval may not be unreasonably withheld or delayed; (xv) not be substituted
for a deleted Trust Mortgage Loan if it would result in the termination of the
REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement, as
determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense); (xvi) have comparable prepayment restrictions; and (xvii) become a
part of the same
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Loan Group as the deleted Trust Mortgage Loan. In the event that one or more
mortgage loans are substituted for one or more deleted Trust Mortgage Loans,
then the amounts described in clause (i) shall be determined on the basis of
aggregate principal balances and the rates described in clause (ii) above
(provided that the lowest Net Mortgage Rate shall not be lower than the highest
fixed Pass-Through Rate of any Class of Sequential Pay Certificates outstanding)
and the remaining term to stated maturity referred to in clause (v) above shall
be determined on a weighted average basis. When a Qualified Substitute Mortgage
Loan is substituted for a deleted Trust Mortgage Loan, the applicable Mortgage
Loan Seller shall certify that the proposed Qualified Substitute Mortgage Loan
meets all of the requirements of the above definition and shall send such
certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in February
2039.
"Rating Agency": Each of DBRS, Fitch and S&P.
"Realized Loss": With respect to: (1) each Specially Serviced
Mortgage Loan or Corrected Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any successor REO Loan as to
which a Final Recovery Determination has been made as to the related REO
Property, an amount (not less than zero) equal to (a) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, plus (b) without taking into account the amount described in subclause
(1)(d) of this definition, all accrued but unpaid interest on such Mortgage Loan
or such REO Loan, as the case may be, at the related Mortgage Rate to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive of any portion thereof that constitutes
Penalty Interest, Additional Interest, Prepayment Premiums or Yield Maintenance
Charges), plus (c) any related unpaid servicing expenses, any related Servicing
Advances (together with Unliquidated Advances in respect of prior related
Servicing Advances) that, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, had not been reimbursed from
the subject Mortgage Loan or REO Property, as the case may be, and any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in respect of and allocable to such
Mortgage Loan or such REO Loan, as the case may be, during the Collection Period
in which such Final Recovery Determination was made net of any portion of such
payments and/or proceeds that is payable or reimbursable in respect of the
related liquidation and other servicing expenses and, in the case of a Mortgage
Loan or REO Loan that is part of a Loan Combination, net of any portion of such
payments and/or proceeds that represent Liquidation Proceeds payable to the
holder(s) of the other Mortgage Loan(s) in that Loan Combination; (2) each
defaulted Mortgage Loan as to which any portion of the principal or previously
accrued interest (other than Additional Interest and Penalty Interest) payable
thereunder or any Unliquidated Advance was canceled in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, the amount of such principal
and/or interest or Unliquidated Advance so canceled; (3) each 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 Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Periodic Payment due thereon (each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Periodic Payment); (4)
each Trust Mortgage Loan or Trust REO Loan as to which there were any
Nonrecoverable Advances, the amount of any such Nonrecoverable Advance
reimbursed (and/or interest thereon paid) from amounts that would have otherwise
been distributable as principal on the Certificates; and (5) each Trust Mortgage
Loan
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purchased from the Trust Fund at a price less than the Purchase Price therefor,
the amount of the deficiency.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent": As defined in Section 2.01(d).
"Recovered Amount": As defined in Section 1.02(c).
"Registered Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-3FL, Class A-3B, Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class
B, Class C or Class D Certificate.
"Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. SS.SS.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation S": 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, one or collectively more global Certificates
of such Class registered in the name of the Depository or its nominee, in
definitive, fully registered form without interest coupons, each of which
Certificates bears a Regulation S CUSIP number.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to the various parties, as set forth on Exhibit L attached hereto.
For clarification purposes, multiple parties can have responsibility for the
same Relevant Servicing Criteria. With respect to a Sub-Servicing Function
Participant engaged by the Trustee, the Master Servicer or the Special Servicer,
the term "Relevant Servicing Criteria" may refer to a portion of the Relevant
Servicing Criteria applicable to the Master Servicer, the Special Servicer or
the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and, consisting
of: (i) all of the Trust Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Trust Mortgage Loans
received after the
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Closing Date (excluding all Additional Interest on such Trust Mortgage Loans),
together with all documents included in the related Mortgage Files and any
related Escrow Payments and Reserve Funds; (ii) all amounts (inclusive of the
Closing Date Deposit and the Additional MLMLI Deposit but exclusive of all
Additional Interest) held from time to time in the Collection Account, the
Interest Reserve Account, any Pool REO Account, the Gain-on-Sale Reserve
Account, any Loan Combination Custodial Account and the Distribution Account;
(iii) any REO Property acquired in respect of a Trust Mortgage Loan; (iv) the
rights of the Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16, 17,
19 and 20 of each of the Mortgage Loan Purchase Agreements with respect to the
Trust Mortgage Loans; and (v) the rights of the mortgagee under all Insurance
Policies with respect to the Trust Mortgage Loans; provided that REMIC I shall
not include any Non-Trust Loan or any successor REO Loan with respect thereto or
any payments or other collections of principal, interest, Prepayment Premiums,
Yield Maintenance Charges or other amounts collected on a Non-Trust Loan or any
successor REO Loan with respect thereto.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the initial REMIC I Principal Balance of each REMIC I Regular Interest
shall be the amount set forth as such in the Preliminary Statement hereto. On
each Distribution Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(i), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to the first paragraph of Section 4.04(b). The REMIC I Principal
Balance of a REMIC I Regular Interest shall be increased, pursuant to the second
paragraph of Section 4.04(b), in connection with increases in the Class
Principal Balance of the Corresponding Certificates as contemplated by the
second paragraph of Section 4.04(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time, to the extent
related to REMIC II, in the Distribution Account conveyed in trust to the
Trustee for the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section 2.07, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class X-0, Xxxxx
X-0X, Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ, 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 P, Class Q, Class X or Class R-II Certificate.
"REMIC Provisions": 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.
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"REO Account": The Pool REO Account or any Loan Combination REO
Account, as applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan (or, if a Loan Combination is
involved, any of the multiple Mortgage Loans comprising the subject Loan
Combination) deemed for purposes hereof to be outstanding with respect to each
REO Property. Each REO Loan shall be deemed to be outstanding for so long as the
related REO Property (or an interest therein) remains part of REMIC I and shall
be deemed to provide for periodic payments of principal and/or interest equal to
its Assumed Periodic 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 as part of the Trust Fund or, if
applicable in the case of any Loan Combination REO Property, on behalf of the
Trust and the related Non-Trust Noteholder(s)). Each REO 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
Periodic Payments (other than a Balloon Payment), Assumed Periodic Payments (in
the case of a Balloon 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 Loan. Collections
in respect of each REO Loan (after provision for amounts to be applied to the
payment of, or to be reimbursed to, the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent for the payment of, the costs of operating,
managing, selling, leasing and maintaining the related REO Property or for the
reimbursement of or payment to the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent for other related Servicing Advances as provided in
this Agreement, interest on such Advances and other related Additional Trust
Fund Expenses) shall be treated: first, as a recovery of accrued and unpaid
interest on such REO Loan at the related Mortgage Rate to but not including the
Due Date in the Collection Period of receipt (exclusive of any portion thereof
that constitutes Additional Interest); second, as a recovery of principal of
such REO Loan to the extent of its entire unpaid principal balance; and third,
in accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, (i) Yield Maintenance Charges, Prepayment
Premiums and Penalty Interest and (ii) Additional Interest and other amounts, in
that order; provided, however, that if the Mortgage Loans comprising a Loan
Combination become REO Loans, then amounts received with respect to such REO
Loans shall be applied to amounts due and owing in respect of such REO Loans as
provided in the related Loan Combination Intercreditor Agreement.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the case may
be, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, including, without limitation, any unpaid Servicing Fees and
any unreimbursed Advances, together with any interest accrued and payable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, in respect of such Advances in accordance with Sections 3.03(d) and
4.03(d), shall continue to be payable or reimbursable to the Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent, as the case may be, in
respect of an REO Loan pursuant to Section 3.05(a). In addition, Workout-Delayed
Reimbursement Amounts and Nonrecoverable Advances with respect to such REO Loan,
in each case, that were paid
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from collections on the Trust Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", shall be deemed
outstanding until recovered.
"REO Property": With respect to any Mortgage Loan (other than a
Mortgage Loan constituting part of a Loan Combination), a Mortgaged Property
acquired on behalf and in the name of the Trust Fund for the benefit of the
Certificateholders 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; and with respect to a Loan
Combination, the related Loan Combination REO Property.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 C.F.R. SS. 225.64 and conducted in accordance with the standards of the
Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Trust Mortgage Loan (or, in
the case of clause (ii) below, any successor Trust REO Loan with respect
thereto) (i) that is 60 days or more delinquent in respect of any Periodic
Payments, (ii) that becomes an REO Loan, (iii) that has been modified by the
Special Servicer in a manner that affects the amount or timing of any Periodic
Payment (other than a Balloon Payment) (except, or in addition to, bringing
monthly Periodic Payments current and extending the Maturity Date for less than
six months), (iv) 60 days following the receipt by the Special Servicer of
notice that a receiver has been appointed and continues in such capacity in
respect of the related Mortgaged Property, (v) 60 days following the receipt by
the Special Servicer of notice that the related Mortgagor has become the subject
of a bankruptcy proceeding, or (vi) delinquent in respect of any Balloon Payment
unless (x) the related Mortgagor makes an Assumed Periodic Payment on each Due
Date (commencing with the Due Date of such Balloon Payment) during the period
contemplated in clause (y), and (y) the Master Servicer receives, within 60 days
after the Due Date of such Balloon Payment, written evidence from an
institutional lender of such lender's binding commitment to refinance such Trust
Mortgage Loan within 120 days after the Due Date of such Balloon Payment and
either such 120-day period has not expired or it has not been determined, in
accordance with the definition of "Specially Serviced Mortgage Loan" that the
refinancing could not reasonably be expected to occur; provided, however, that a
Required Appraisal Mortgage Loan shall cease to be a Required Appraisal Mortgage
Loan:
(a) with respect to the circumstances described in clauses (i)
and (iii) above, when the related Mortgagor has made three consecutive
full and timely Periodic Payments under the terms of such Trust Mortgage
Loan (as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or by
reason of a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20); and
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(b) with respect to the circumstances described in clauses (iv),
(v) and (vi) above, when such circumstances cease to exist in the
reasonable judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), but, with respect to any bankruptcy or insolvency
proceedings described in clauses (iv) and (v), no later than the entry of
an order or decree dismissing such proceeding, and with respect to the
circumstances described in clause (vi) above, no later than the date that
the Special Servicer agrees to an extension pursuant to Section 3.20
hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Trust Mortgage Loan to continue to be
characterized as a Required Appraisal Mortgage Loan. For purposes of the
foregoing, each Loan Combination shall be treated as a single Mortgage Loan.
"Required Appraisal Value": With respect to any Mortgaged Property
or REO Property related to a Required Appraisal Mortgage Loan, 90% of an amount
equal to (A) subject to reduction by the Special Servicer in accordance with
Section 3.09(a), the Appraised Value of such Mortgaged Property or REO Property,
as the case may be, as determined by a Required Appraisal or letter update or
internal valuation, if applicable, reduced by (B) the amount of any obligations
secured by liens on such Mortgaged Property that are prior to the lien of such
Required Appraisal Mortgage Loan and estimated liquidation expenses; provided,
however, that for purposes of determining any Appraisal Reduction Amount in
respect of such Required Appraisal Mortgage Loan, such Appraisal Reduction
Amount shall be amended no less often than annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
of a Required Appraisal or internal valuation, if applicable conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs, capital
improvements, tenant improvements and/or leasing commissions with respect to the
related Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer in the Global Securities and Trust Services Group of the
initial Trustee, (ii) any successor Trustee, any officer or assistant officer in
the Corporate Trust Department of the Trustee, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers to whom a particular matter is
referred by the Trustee because of such officer's knowledge of and familiarity
with the particular subject, and (iii) any Fiscal Agent, any officer thereof.
"Restricted Servicer Reports": Collectively, to the extent not filed
with the Commission, the CMSA Servicer Watch List, the CMSA Operating Statement
Analysis Report, the CMSA NOI Adjustment Worksheet, the CMSA Financial File, the
CMSA Comparative Financial Status Report, the CMSA Loan Level Reserve/LOC Report
and the CMSA Reconciliation of Funds Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in
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the name of the Depository or its nominee, in definitive, fully registered form
without interest coupons, and each of which certificates has a Rule 144A CUSIP
number.
"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 organization or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer, the Special Servicer and any
Fiscal Agent, and specific ratings of S&P herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 8.16(a)(iv).
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 or acceleration of principal by reason of default, and assuming that each
prior Scheduled Payment has been made in a timely manner; provided, however,
that if the related loan documents for a Loan Combination provide for a single
monthly debt service payment for such Loan Combination, then the Scheduled
Payment for each Mortgage Loan comprising such Loan Combination for any Due Date
shall be that portion of the monthly debt service payment for such Loan
Combination and such Due Date that is, in accordance with the related loan
documents and/or the related Loan Combination Intercreditor Agreement, in the
absence of default, allocable to interest at the related Mortgage Rate on and/or
principal of each such Mortgage Loan comprising the subject Loan Combination.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-3FL, Class A-3B, Class A-SB, Class A-4, Class A-1A or Class X Certificate.
"Sequential Pay Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-3FL, Class A-3B, Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ,
Class AN-FL, 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 P or Class Q Certificate.
"Servicer": Any Person that constitutes a "servicer", as defined in
Item 1101(j) of Regulation AB, with respect to the Subject Securitization
Transaction.
"Servicer Notice": As defined in Section 3.14.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by or on behalf of the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent in connection with
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the servicing of a Mortgage Loan, if a default is imminent thereunder or after a
default, delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and the Special
Servicer, if any, set forth in Section 3.02 and 3.03, (b) (i) real estate taxes,
assessments, penalties and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies, in each instance if and
to the extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis, (c) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, including the cost of any
"force placed" insurance policy purchased by the Master Servicer or the Special
Servicer to the extent such cost is allocable to a particular Mortgaged Property
that the Master Servicer or the Special Servicer is required to cause to be
insured pursuant to Section 3.07(a), (d) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iii), (v), (vii)
and (viii) of the definition of "Liquidation Proceeds," (e) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including, without
limitation, foreclosures, (f) any Required Appraisal or other appraisal
expressly required or permitted to be obtained hereunder, (g) the operation,
management, maintenance and liquidation of any REO Property, including, without
limitation, appraisals and compliance with Section 3.16(a) (to the extent not
covered by available funds in the applicable REO Account), (h) obtaining related
ratings confirmation (to the extent not paid by the related Mortgagor), (i) UCC
filings (to the extent not reimbursed by the Mortgagor), (j) compliance with the
obligations of the Master Servicer or the Trustee set forth in Section 2.03(a)
or (b) and (k) any other expenditure expressly designated as a Servicing Advance
under this Agreement. Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer or the
Special Servicer, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses and similar internal
costs, and expenses or costs and expenses incurred by any such party in
connection with its purchase of a Mortgage Loan or REO Property, or costs or
expenses expressly required to be borne by the Master Servicer or Special
Servicer without reimbursement pursuant to the terms of this Agreement.
"Servicing Criteria": The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
"Servicing Fees": With respect to each Mortgage Loan and any
successor REO Loan with respect thereto, the Master Servicing Fee and the
Special Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to, the
origination and servicing of any Mortgage Loan, and that are reasonably required
for the ongoing administration of the Mortgage Loan, including appraisals,
surveys, property inspection reports, engineering reports, environmental
reports, financial statements, leases, rent rolls and tenant estoppels.
"Servicing Function Participant": Any of: (i) the Master Servicer;
(ii) the Special Servicer; (iii) the Trustee; and (iv) any other party hereto,
in addition to the Master Servicer, the Special Servicer and the Trustee, that
is a "party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Trust Fund.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
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"Servicing Representative": With respect to the Master Servicer, the
Special Servicer or the Trustee, any other Person (including any Sub-Servicer,
subcontractor, vendor or agent) retained or engaged thereby to perform any
duties in connection with this Agreement or all or any portion of the Trust
Fund, the performance of which duties would cause such other Person to be, or
result in such other Person being, a Servicer or a Sub-Servicing Function
Participant.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration of the
Mortgage Loans (including any Non-Trust Loans) for which it is responsible
hereunder (a) in the same manner in which, and with the same care, skill,
prudence and diligence with which, the Master Servicer or the Special Servicer,
as the case may be, generally services and administers similar mortgage loans
(i) for other third parties, giving due consideration to customary and usual
standards of practice of prudent institutional commercial mortgage loan
servicers servicing mortgage loans for third parties or (ii) held in its own
portfolio, whichever standard is higher, (b) with a view to (i) the timely
recovery of all Scheduled Payments of principal and interest under the Mortgage
Loans, (ii) in the case of the Special Servicer, if a Mortgage Loan comes into
and continues in default, the maximization of the recovery on that Mortgage Loan
to the Certificateholders or, in the case of any Loan Combination, to the
Certificateholders and the related Non-Trust Noteholder(s) (as a collective
whole) on a net present value basis (the relevant discounting of anticipated
collections to be performed at the related Mortgage Rate) and (iii) the best
interests of the Certificateholders and the Trust Fund (or, in the case of any
Loan Combination, the Certificateholders, the Trust Fund and the related
Non-Trust Noteholder(s), taking into account, if applicable and to the extent
consistent with the related Loan Combination Intercreditor Agreement and the
related Mortgage Loan documents, the subordinate nature, if applicable, of the
related Non-Trust Loan(s) and (c) without regard to (i) any relationship that
the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof may have with the related Mortgagor (or any Affiliate
thereof), the Depositor, any Mortgage Loan Seller, or any other party to the
transactions contemplated hereby; (ii) the ownership of any Certificate by the
Master Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof; (iii) the right of the Master Servicer or the Special Servicer, as the
case may be, to receive compensation or other fees for its services rendered
pursuant to this Agreement; (iv) the obligations of the Master Servicer or the
Special Servicer, as the case may be, to make Advances; (v) the ownership,
servicing or management by the Master Servicer or the Special Servicer or any
Affiliate thereof for others of any other mortgage loans or mortgaged property
not included in or securing, as the case may be, the Mortgage Pool; (vi) any
obligation of the Master Servicer or any Affiliate of the Master Servicer to
repurchase or substitute a Mortgage Loan as a Mortgage Loan Seller; (vii) any
obligation of the Master Servicer or any Affiliate of the Master Servicer to
cure a breach of a representation and warranty with respect to a Mortgage Loan;
and (viii) any debt the Master Servicer or Special Servicer or any Affiliate of
either has extended to any Mortgagor or any Affiliate thereof.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Significant Mortgage Loan": At any time of determination, any
Mortgage Loan that (1) has a principal balance of $20,000,000 or more at the
time of determination or has, whether (a) individually, (b) as part of a Crossed
Loan Group or (c) as part of a group of Mortgage Loans made to affiliated
Mortgagors, a principal balance that is equal to or greater than 5% or more of
the aggregate outstanding principal balance of the Mortgage Pool at the time of
determination or (2) is one of the 10 largest Mortgage Loans (which for the
purposes of this definition shall include Crossed Loan Groups
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and groups of Mortgage Loans made to affiliated Mortgagors) by outstanding
principal balance at such time.
"Significant Obligor": (a) Any obligor (as defined in Item 1101(i)
of Regulation AB) or group of affiliated obligors on any Trust Mortgage Loan or
group of Trust Mortgage Loans that represent, as of the Closing Date, 10% or
more of the Mortgage Pool (by Cut-off Date Balance); or (b) any single Mortgaged
Property or group of Mortgaged Properties securing any Trust Mortgage Loan or
group of cross-collateralized and/or cross-defaulted Trust Mortgage Loans that
represent, as of the Closing Date, 10% or more of the Mortgage Pool (by Cut-off
Date Balance).
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates, the Class A-3FL Certificates
or the Class AN-FL Certificates, evidencing a $1,000 denomination.
"Sole Certificate Owner": As defined in Section 9.01.
"Special Servicer": Midland Loan Services, Inc., or any successor in
interest thereto, or any successor special servicer appointed as herein
provided.
"Special Servicer Indemnification Agreement": That certain Special
Servicer Indemnification Agreement, dated as of March 22, 2006, between the
initial Special Servicer, the Trustee, the Underwriters and the Initial
Purchasers.
"Special Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that
is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Special Servicer or any
Servicing Representative of the Special Servicer is a party to such
agreement or has entered into such agreement on behalf of the Trust [ITEM
1.01 ON FORM 8-K];
(ii) the termination of a definitive agreement that is material
to the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Special Servicer or any Servicing Representative of the Special Servicer
is a party to such agreement or has entered into such agreement on behalf
of the Trust [ITEM 1.02 ON FORM 8-K];
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or
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(C) any Significant Obligor with respect to a Specially Serviced Mortgage
Loan [ITEM 1.03(a) ON FORM 8-K];
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan [ITEM 1.03(b)
ON FORM 8-K];
(v) any resignation, removal, replacement or substitution of (A)
the Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB [ITEM 6.02 ON FORM 8-K];
(vi) any appointment of (A) a new Special Servicer or (B) any new
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB [ITEM 6.02 ON
FORM 8-K];
(vii) any nonpublic disclosure, by the Special Servicer or any
Servicing Representative of the Special Servicer, with respect to the
Subject Securitization Transaction (other than disclosure required by this
Agreement) that is required to be disclosed by Regulation FD (17 C.F.R.
243.100 through 243.103) [ITEM 7.01 ON FORM 8-K];
(viii) any other information of importance to Certificateholders
(determined by the Special Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the Special
Servicer has determined, in accordance with the Servicing Standard, could
have an adverse effect on payments to any Class of Certificateholders, and
(C) is directly related to a Specially Serviced Mortgage Loan [ITEM 8.01
ON FORM 8-K];
(ix) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Special Servicer is controlling the subject litigation or if the subject
Material Litigant is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any Significant
Obligor with respect to a Specially Serviced Mortgage Loan [ITEM 2 ON FORM
10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial
statements, balance sheets, rent rolls or other financial information
regarding any Significant Obligor (that has been identified to the Special
Servicer in writing) with respect to a Specially Serviced Mortgage Loan
[ITEM 6 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the Special
Servicer to the Trustee and the Depositor in
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accordance with Section 8.15(c), whether the Special Servicer has become
an affiliate (as defined in Rule 405 of the Securities Act) of any of (A)
the Trust, (B) the Depositor, (C) a Mortgage Loan Seller, (D) the Trustee,
(E) the Master Servicer, (F) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or (G) any Significant Obligor [GENERAL INSTRUCTION J TO
FORM 10-K];
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between
Countrywide or the Trust, on the one hand, and the Special Servicer or any
Servicing Representative of the Special Servicer, on the other hand
[GENERAL INSTRUCTION J TO FORM 10-K]; and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between Countrywide or the Trust, on the one
hand, and the Special Servicer or any Servicing Representative of the
Special Servicer, on the other hand [GENERAL INSTRUCTION J TO FORM 10-K].
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
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 Loan, 0.25% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Trust Mortgage Loan, the following documents collectively:
(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 attached thereto);
(ii) an original or a copy of the Mortgage (with or without
recording information);
(iii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or a copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company or
an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(iv) an original or a copy of any Ground Lease or ground lessor
estoppel; and
(v) a copy of any letter of credit relating to the Trust
Mortgage Loan;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) 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.
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"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events have occurred:
(a) the related Mortgagor shall have failed to make when due any
Periodic Payment, including a Balloon Payment, and the failure continues
unremedied--
(i) except in the case of a Balloon Payment, for 60
days; or
(ii) solely in the case of a delinquent Balloon Payment,
beyond the day such Balloon Payment was due or (if
longer) beyond the applicable grace period for a
Balloon Payment unless (x) the related Mortgagor (A)
makes in respect of each Due Date (commencing with
the Due Date of such Balloon Payment) during the
period contemplated in (B) below, without omission,
Assumed Periodic Payments and (B) delivers a
refinancing commitment within 60 days after such
Mortgage Loan's maturity date, then for such period
(not to exceed 120 days) beyond such Mortgage Loan's
maturity date ending on the earlier of the date on
which the related Mortgagor fails to make an Assumed
Periodic Payment or the date on which it is
determined that the refinancing could not reasonably
be expected to occur; or
(b) the Master Servicer or, with the consent of the Controlling
Class Representative, the Special Servicer shall have determined, in its
reasonable judgment (exercised in accordance with the Servicing Standard),
based on, among other things, communications with the related Mortgagor,
that a default in making a Periodic Payment (including a Balloon Payment)
is likely to occur and is likely to remain unremedied for at least 60
days; or
(c) the Master Servicer or, with the consent of the Controlling
Class Representative, the Special Servicer shall have determined, in its
reasonable judgment (exercised in accordance with the Servicing Standard),
that a default (other than an Acceptable Insurance Default or a default
described in clause (a) above) has occurred that may materially impair the
value of the Mortgaged Property as security for the Mortgage Loan and the
default continues unremedied beyond the applicable grace period under the
terms of the Mortgage Loan (or, if no grace period is specified, for 60
days, provided that a default that gives rise to an acceleration right
without any grace period shall be deemed to have a grace period equal to
zero); or
(d) 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, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor; provided that if
such decree or order is discharged, dismissed or stayed within 60 days it
shall not be a Specially Serviced Mortgage Loan (and no Special Servicing
Fees shall be payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
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(f) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(i) with respect to the circumstances described in clause (a)
above, when the related Mortgagor has made three consecutive full and
timely Periodic 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 Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20);
(ii) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, when such circumstances cease to exist in the
reasonable judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no other circumstance identified in clauses (a) through
(g) above exists that would otherwise cause such Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan.
During any time an entire Loan Combination is serviced and
administered pursuant to this Agreement, if a Servicing Transfer Event exists
with respect to one Mortgage Loan in such Loan Combination, it will also be
considered to exist for the other Mortgage Loan(s) in such Loan Combination;
provided that, if a B-Note Loan Holder prevents the occurrence of a Servicing
Transfer Event with respect to the related A-Note Trust Mortgage Loan through
the exercise of cure rights as set forth in the related Loan Combination
Intercreditor Agreement, then the existence of such Servicing Transfer Event
with respect to the related B-Note Non-Trust Loan shall not, in and of itself,
result in the existence of a Servicing Transfer Event with respect to such
A-Note Trust Mortgage Loan or cause the servicing of the subject Loan
Combination to be transferred to the Special Servicer, unless a separate
Servicing Transfer Event has occurred with respect thereto.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York,
Illinois, North Carolina, Kansas and by any other state or local taxing
authorities as may, by notice to the Trustee, assert jurisdiction over the Trust
Fund or any portion thereof, or which, according to an Opinion of Counsel
addressed to the Trustee, have such jurisdiction.
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"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Trust Mortgage Loan
as of any date of determination, an amount (which amount shall not be less than
zero) equal to (x) the Cut-off Date Balance of such Trust Mortgage Loan (or, in
the case of a Qualified Substitute Mortgage Loan that is a Trust Mortgage Loan,
the unpaid principal balance thereof after application of all principal payments
due on or before the related date of substitution, whether or not received),
permanently reduced on each Distribution Date, to not less than zero, by (y) the
sum of:
(i) all payments and other collections of principal, if any,
with respect to such Trust Mortgage Loan that are included as part of the
Principal Distribution Amount for such Distribution Date pursuant to
clause(s) (a), (b), (c) and/or (d) of, and without regard to the provisos
to, the definition of "Principal Distribution Amount";
(ii) any other amount received with respect to such Trust
Mortgage Loan during the related Collection Period that is not included
among the payments and other collections of principal described in the
immediately preceding clause (i), as to which there is not and never has
been an outstanding P&I Advance and that is actually applied in reduction
of the amount of principal owing from the related Mortgagor;
(iii) any amount of reduction in the outstanding principal balance
of such Trust Mortgage Loan resulting from a Deficient Valuation that
occurred during the related Collection Period; and
(iv) any related Realized Loss (other than any such loss
resulting from a Deficient Valuation) incurred during the related
Collection Period that represents a loss of principal with respect to that
Trust Mortgage Loan.
With respect to any Trust REO Loan, as of any date of determination,
an amount equal to (x) the Stated Principal Balance of the predecessor Trust
Mortgage Loan as of the date of the related REO Acquisition, permanently reduced
on each subsequent Distribution Date, to not less than zero, by (y) the sum of:
(a) all amounts, if any, collected with respect to the related
REO Property that are allocable as principal of the subject Trust REO Loan
and that are included as part of the Principal Distribution Amount for
such Distribution Date pursuant to clause (e) and/or clause (f) of, and
without regard to the provisos to, the definition of "Principal
Distribution Amount"; and
(b) any related Realized Losses incurred during the related
Collection Period that represents a loss of principal with respect to the
subject Trust REO Loan.
A Trust Mortgage Loan or a Trust REO Loan shall be deemed to be part
of the Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof
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are to be (or, if no such payments or other proceeds are received in connection
with such Liquidation Event, would have been) distributed to Certificateholders.
The Stated Principal Balance with respect to each of the Kenwood
Towne Centre B-Note Non-Trust Loan and the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan
or any successor REO Loan with respect thereto, as of any date of determination,
shall be (1) the Cut-off Date Balance of such Mortgage Loan, as permanently
reduced on each monthly remittance date under the related Loan Combination
Intercreditor Agreement to not less than zero, by (2) the sum of (A) any amounts
received during the related Collection Period that are allocable as principal of
such Non-Trust Loan or any successor REO Loan with respect thereto and (B) any
Realized Losses incurred with respect to such Non-Trust Loan or any successor
REO Loan during the related Collection Period that represent a loss of principal
with respect thereto (including as a result of a Deficient Valuation).
With respect to a Non-Trust Loan other than the Kenwood Towne Centre
B-Note Non-Trust Loan or the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan or any
successor REO Loan with respect thereto on any date of determination, the Stated
Principal Balance shall equal the unpaid principal balance of such Non-Trust
Loan or the deemed unpaid principal balance of such successor REO Loan.
"Subject Securitization Transaction": The commercial mortgage
securitization transaction contemplated by this Agreement.
"Subordinated Certificate": Any Class AM, Class AJ, Class AN-FL,
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 P, Class Q, Class R-I or Class R-II
Certificate.
"Sub-Servicer": Any Person that the Master Servicer or the Special
Servicer has retained or engaged for the performance (whether directly or
through Sub-Servicers or subcontractors) of a substantial portion of the
material servicing functions required to be performed by the Master Servicer or
the Special Servicer under this Agreement, with respect to one or more of the
Mortgage Loans, which servicing functions either (a) are identified in Item
1122(d) of Regulation AB or (b) would cause such Person to be a Servicer.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the 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.
"Sub-Servicing Function Participant" shall mean any Sub-Servicer,
sub-contractor, vendor, agent or other Person acting on behalf of a party
hereto, which Sub-Servicer, sub-contractor, vendor, agent or other Person is a
"party participating in the servicing function" (within the meaning of the
instructions to Item 1122 of Regulation AB) as regards the Trust Fund (i.e., any
entity that is performing activities that address the criteria in Item 1122(d)
of Regulation AB, unless such entity's activities relate only to 5% or less of
the Mortgage Loans, by balance).
"Subsequent Exchange Act Reports": As defined in Section 8.16(a).
"Substitution Shortfall Amount": With respect to a substitution
pursuant to or as contemplated by Section 2.03(a) hereof, an amount equal to the
excess, if any, of the Purchase Price of the Trust Mortgage Loan being replaced,
calculated as of the date of substitution over the Stated Principal Balance of
the related Qualified Substitute Mortgage Loan as of the date of substitution.
In the event that one or more Qualified Substitute Mortgage Loans are
substituted (at the same time) for one or
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more deleted Trust Mortgage Loans, the Substitution Shortfall Amount shall be
determined as provided in the preceding sentence on the basis of the aggregate
Purchase Price of the Trust Mortgage Loan or Trust Mortgage Loans being replaced
and the aggregate Stated Principal Balance of the related Qualified Substitute
Mortgage Loan or Qualified Substitute Mortgage Loans.
"Swap Agreement": Either of the Class A-3FL Swap Agreement or the
Class AN-FL Swap Agreement.
"Swap Counterparty": Either of the Class A-3FL Swap Counterparty or
the Class AN-FL Swap Counterparty.
"Swap Default": With respect to either Swap Agreement, any failure
on the part of the related Swap Counterparty (that continues beyond any
applicable grace period under such Swap Agreement) to (i) make a required
payment under such Swap Agreement as and when due thereunder, (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty or
find an acceptable guarantor after a Collateralization Event (as defined in such
Swap Agreement) has occurred, as required by Part 1(n)(1) of the Schedule to the
Master Agreement in such Swap Agreement, or (iii) find an acceptable replacement
Swap Counterparty after a Rating Agency Trigger Event (as defined in such Swap
Agreement) has occurred, as required by Part 1(n)(3) of the Schedule to the
Master Agreement in such Swap Agreement.
"Swap Payment Default": A Swap Default of the nature described in
clause (i) of the definition of "Swap Default".
"Swap Termination Fees": With respect to either Swap Agreement, any
fees, costs or expenses payable by the related Swap Counterparty to the Trust in
connection with a Swap Default under such Swap Agreement, termination of such
Swap Agreement or liquidation of such Swap Agreement, as specified in such Swap
Agreement.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d), which Person
shall be the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, the federal income tax return to be filed
on behalf of each of Grantor Trust A-3FL, Grantor Trust AN-FL and Grantor Trust
Z due to its classification as a grantor trust under the Grantor Trust
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
Internal Revenue Service under any applicable provisions of federal tax law or
any other governmental taxing authority under applicable State and Local Tax
laws.
"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)(i)(B).
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"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust ARD Loan": Any Trust Mortgage Loan that is an ARD Loan.
"Trust Balloon Loan": Any Trust Mortgage Loan that is a Balloon
Loan.
"Trust Corrected Mortgage Loan": Any Trust Mortgage Loan that is a
Corrected Mortgage Loan.
"Trust Defaulted Mortgage Loan": Any Trust Mortgage Loan that is a
Defaulted Mortgage Loan.
"Trust Defeasance Mortgage Loan": Any Trust Mortgage Loan that is a
Defeasance Loan.
"Trust Fund": Collectively, (i) all of the assets of REMIC I and
REMIC II, (ii) the Grantor Trust Z Assets, (iii) the Grantor Trust A-3FL Assets
and (iv) the Grantor Trust AN-FL Assets.
"Trust Mortgage Loan": Each of the Mortgage Loans, including any
A-Note Trust Mortgage Loan, transferred and assigned to the Trust Fund pursuant
to Section 2.01 and listed on the Mortgage Loan Schedule and from time to time
held in the Trust Fund.
"Trust Required Appraisal Mortgage Loan": Any Trust Mortgage Loan or
Trust REO Loan that is a Required Appraisal Mortgage Loan.
"Trust REO Loan": Any REO Loan that succeeded a Trust Mortgage Loan.
"Trust Specially Serviced Mortgage Loan": Any Trust Mortgage Loan
that is a Specially Serviced Mortgage Loan.
"Trustee": LaSalle Bank National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Appointee": Any Fiscal Agent, Authenticating Agent,
Certificate Registrar, REMIC Administrator, Custodian, co-trustee or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Fee": With respect to each Trust Mortgage Loan and each
Trust REO Loan for any Distribution Date (excluding, in the case of the initial
Distribution Date, any Closing Date Deposit Mortgage Loan), an amount equal to
one month's interest for the most recently ended calendar month (calculated on
the same interest accrual basis as such Trust Mortgage Loan or Trust REO Loan,
as the case may be), accrued at the Trustee Fee Rate on the Stated Principal
Balance of such Trust Mortgage Loan or Trust REO Loan, as the case may be,
outstanding immediately following the prior Distribution Date (or, in the case
of the initial Distribution Date, as of the Closing Date).
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"Trustee Fee Rate": 0.0010% per annum.
"Trustee Investment Period": With respect to any Distribution Date,
the period commencing on the day immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, commencing
on the Closing Date) and ending on and including the subject Distribution Date.
"Trustee Reportable Event": Any of the following events, conditions,
circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that
is material to the Subject Securitization Transaction, including, for
example, a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of Regulation AB, but only if the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee is a party to such
agreement or has entered into such agreement on behalf of the Trust [ITEM
1.01 ON FORM 8-K];
(ii) the termination of a definitive agreement that is material
to the Subject Securitization Transaction (otherwise than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), but only if the
Trustee, any Servicing Representative of the Trustee or any Trustee
Appointee is a party to such agreement or has entered into such agreement
on behalf of the Trust [ITEM 1.02 ON FORM 8-K];
(iii) the appointment of a receiver, fiscal agent or similar
officer for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or in any other proceeding under state or federal law in which a
court or governmental authority has assumed jurisdiction over
substantially all of the assets or business of any Material Debtor,
including where such jurisdiction has been assumed by leaving the existing
directors and officers in possession but subject to the supervision and
orders of a court or governmental authority, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust [ITEM
1.03(a) ON FORM 8-K];
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or governmental
authority having supervision or jurisdiction over substantially all of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing Representative of
the Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust [ITEM
1.03(b) ON FORM 8-K];
(v) any event that has occurred hereunder that would materially
alter the payment priority or distribution of cash flows regarding the
Certificates [ITEM 2.04 ON FORM 8-K];
(vi) any material modification to the rights of the Holders of
any Class of Certificates, including by reason of a modification to this
Agreement, a Mortgage Loan Purchase Agreement or any other constituent
instrument [ITEM 3.03(a) ON FORM 8-K];
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(vii) any material limitation or qualification of the rights
evidenced by any Class of Certificates by reason of the modification of
any other Class of Certificates [ITEM 3.03(b) ON FORM 8-K];
(viii) any amendment to this Agreement pursuant to Section 11.01
[ITEM 5.03 ON FORM 8-K];
(ix) any resignation, removal, replacement or substitution of (A)
the Trustee, the Master Servicer or the Special Servicer or (B) any
Servicing Representative of the Trustee that constitutes a Servicer
contemplated by Item 1108(a)(2) of Regulation AB [ITEM ON 6.02 ON FORM
8-K];
(x) any appointment of (A) a new Trustee, new Master Servicer or
new Special Servicer or (B) any new Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation AB [ITEM 6.02 ON FORM 8-K];
(xi) any termination of a material enhancement or support
specified in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation AB that was previously applicable regarding one or more Classes
of the Certificates, which termination has occurred other than by
expiration of the contract on its stated termination date or as a result
of all parties completing their obligations under such agreement [ITEM
6.03(a) ON FORM 8-K];
(xii) any addition of a material enhancement or support specified
in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation
AB with respect to one or more Classes of the Certificates [ITEM 6.03(b)
ON FORM 8-K];
(xiii) any material amendment or modification of a material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB with respect to one or more
Classes of the Certificates [ITEM 6.03(c) ON FORM 8-K];
(xiv) any material failure on the part of the Trustee to make on
the applicable Distribution Date any required monthly distributions to the
Holders of any Class of Certificates [ITEM 6.04 ON FORM 8-K];
(xv) any nonpublic disclosure, by the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee, with respect to
the Subject Securitization Transaction that is required to be disclosed by
Regulation FD (17 C.F.R. 243.100 through 243.103) [ITEM 7.01 ON FORM 8-K];
(xvi) any other information of importance to Certificateholders
that is not otherwise required to be included in the Distribution Date
Statement or any other report to be delivered or otherwise made available
to Certificateholders hereunder and that is directly related to the
obligations of the Trustee hereunder [ITEM 8.01 ON FORM 8-K];
(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any Material
Litigant, or of which any property of a Material Litigant is the subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if the
Trustee is controlling the subject litigation or if the subject Material
Litigant is (A) the Trustee, (B) any Servicing Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3) of
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Regulation AB, (C) any Trustee Appointee, (D) any Enhancement/Support
Provider that is not an Affiliate of the Depositor or (E) the Trust [ITEM
2 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM 10-K];
(xviii) any material default in the payment of principal and
interest on, or any other material default with respect to, any Class of
Certificates [ITEM 4 ON FORM 10-D];
(xix) the submission of any matter to a vote by Certificateholders
[ITEM 5 ON FORM 10-D];
(xx) the receipt by the Trustee or by any Servicing
Representative or other agent of the Trustee of any updated information
regarding an Enhancement/Support Provider with respect to any Class of
Certificates that is required pursuant to Item 1114(b)(2) or Item 1115(b)
of Regulation AB [ITEM 7 ON FORM 10-D AND GENERAL INSTRUCTION J TO FORM
10-K];
(xxi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in an Exchange Act Report in accordance
with this Agreement, whether the Trustee has become an affiliate (as
defined in Rule 405 of the Securities Act) of any of (A) the Trust, (B)
the Depositor, (C) a Mortgage Loan Seller, (D) the Master Servicer, (E)
the Special Servicer, (F) any Servicing Representative of the Trustee that
constitutes a Servicer contemplated by Item 1108(a)(3) of Regulation AB,
(G) any Trustee Appointee or (H) any Significant Obligor [GENERAL
INSTRUCTION J TO FORM 10-K];
(xxii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement, transaction
or understanding contemplated by Item 1119(b) of Regulation AB between the
Depositor, a Mortgage Loan Seller or the Trust, on the one hand, and the
Trustee, any Trustee Appointee (but only if such Trustee Appointee is a
material party to the Subject Securitization Transaction contemplated by
Item 1100(d)(1) of Regulation AB) or any Servicing Representative (but
only if such Servicing Representative is a Servicer contemplated by Item
1108(a)(3) of Regulation AB or a material party related to the Subject
Securitization Transaction contemplated by Item 1100(d)(1) of Regulation
AB) of the Trustee, on the other hand [GENERAL INSTRUCTION J TO FORM
10-K]; and
(xxiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the Subject
Securitization Transaction or the Mortgage Loans contemplated by Item
1119(c) of Regulation AB between the Depositor, a Mortgage Loan Seller or
the Trust, on the one hand, and the Trustee, any Trustee Appointee (but
only if such Trustee Appointee is a material party to the Subject
Securitization Transaction contemplated by Item 1100(d)(1) of Regulation
AB) or any Servicing Representative (but only if such Servicing
Representative is a Servicer contemplated by Item 1108(a)(3) of Regulation
AB or a material party related to the Subject Securitization Transaction
contemplated by Item 1100(d)(1) of Regulation AB) of the Trustee, on the
other hand [GENERAL INSTRUCTION J TO FORM 10-K].
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed pursuant to
the UCC.
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"Underwriter": Each of MLPF&S, Countrywide Securities, EHY
Securities (USA), LLC, Banc of America Securities LLC, Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx, Sachs & Co. or in each case, its respective successor
in interest.
"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 or any political subdivision thereof, or an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust (or to the extent
provided in the Treasury regulations, if the trust was in existence on August
20, 1996 and elected to be treated as a United States person), all within the
meaning of Section 7701(a)(30) of the Code.
"Unliquidated Advance": Any Advance previously made by a party
hereto that (i) is not a Nonrecoverable Advance, (ii) has been previously
reimbursed to the party that made the Advance as a Workout-Delayed Reimbursement
Amount pursuant to Section 3.05(a)(vii) out of principal collections on other
Trust Mortgage Loans and (iii) was originally made with respect to an item that
has not been subsequently recovered out of collections on or proceeds of the
related Trust Mortgage Loan or any related REO Property (and provided that no
Liquidation Event has occurred with respect to the related Trust Mortgage Loan
or any related REO Property).
"Unrestricted Servicer Reports": Collectively, 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 Advance Recovery Report and, if and to the extent filed with the
Commission, such reports and files as would, but for such filing, constitute
Restricted Servicer Reports.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers of America.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates, the Class A-3FL Certificates and the Class
AN-FL Certificates. Ninety-eight percent (98%) of the Voting Rights shall be
allocated among the Class X-0, Xxxxx X-0, Class A-3, Class A-3FL, Class A-3B,
Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, 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 P and Class Q Certificates in proportion to the
respective Class Principal Balances of their Certificates. Two percent (2%) in
the aggregate of the Voting Rights shall be allocated to the Class X
Certificates. The Class Z and the Residual Certificates shall have no voting
rights. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in standard proportion to the Percentage
Interests evidenced by their respective Certificates. In addition, if the Master
Servicer is the holder of any Certificates, the Master Servicer, in its capacity
as a Certificateholder, shall have no Voting Rights with respect to matters
concerning compensation affecting the Master Servicer.
"Wachovia": Wachovia Bank, National Association or any successor in
interest.
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"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
Net Mortgage Pass-Through Rates applicable to the Trust Mortgage Loans and any
Trust REO Loans for such Distribution Date, weighted on the basis of their
respective Stated Principal Balances immediately following the preceding
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Workout-Delayed Reimbursement Amounts": With respect to any Trust
Mortgage Loan, the amount of any Advance made with respect to such Trust
Mortgage Loan on or before the date such Trust Mortgage Loan becomes (or, but
for the making of three monthly payments under its modified terms, would then
constitute) a Trust Corrected Mortgage Loan, together with (to the extent
accrued and unpaid) interest on such Advances accruing before, on and after such
date, to the extent that (i) such Advance is not reimbursed to the Person who
made such Advance on or before the date, if any, on which such Trust Mortgage
Loan becomes a Trust Corrected Mortgage Loan and (ii) the amount of such Advance
becomes an obligation of the Mortgagor to pay such amount under the terms of the
modified loan documents. 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.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges". In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer or the Special Servicer, as applicable, shall
be required to follow the terms and provisions contained in the applicable
Mortgage Note, provided, however, in the event the particular Mortgage Note
shall not specify the U.S. Treasuries which shall be used in determining the
discount rate or the reinvestment yield to be applied in such calculation, the
Master Servicer or the Special Servicer, as applicable, shall be required to use
those U.S. Treasuries having maturity dates most closely approximating the
maturity of such Mortgage Loan. Accordingly if either no U.S. Treasury issue, or
more than one U.S. Treasury issue, shall coincide with the term over which the
Yield Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer or the
Special Servicer, as applicable, shall use the U.S. Treasury whose reinvestment
yield is the lowest, with such yield being based on the bid price for such issue
as published in The Wall Street Journal on the date that is 14 days prior to the
date that the Yield Maintenance Charge shall become due and payable (or, if such
bid price is not published on that date, the next preceding date on which such
bid price is so published) and converted to a monthly compounded nominal yield.
The monthly compounded nominal yield ("MEY") is derived from the reinvestment
yield or discount rate and shall be defined as MEY = 12X ({(1+"BEY"/2)^1/6}-1)
where BEY is defined as the U.S. Treasury Reinvestment Yield which is in decimal
form and not in percentage, and 1/6 is the exponential power to which a portion
of the equation is raised. For example, using a BEY of 5.50%, the MEY = 12 X
({(1+ .055/2)^0.16667}-1) where .055 is the decimal version of
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the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
SECTION 1.02. Certain Adjustments to the Principal Distributions
on the Certificates.
(a) If any party hereto is reimbursed out of general collections
on the Mortgage Pool on deposit in the Collection Account for (i) any
unreimbursed Advance that has been or is determined to be a Nonrecoverable
Advance (together with interest accrued and payable thereon pursuant to Section
3.03(d) or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than related Default Charges) or (ii) any
Workout-Delayed Reimbursement Amount, then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made:
first, out of any amounts then on deposit in the Collection
Account that represent payments or other collections of principal received
by the Trust with respect to the Trust Mortgage Loans and/or Trust REO
Loans in the Loan Group that includes the Trust Mortgage Loan or Trust REO
Loan in respect of which such Nonrecoverable Advance was made or in
respect of which such Workout-Delayed Reimbursement Amount is outstanding,
and which amounts, but for their application to reimburse such
Nonrecoverable Advance (and/or to pay interest thereon) or to reimburse
such Workout-Delayed Reimbursement Amount, as the case may be, would be
included in the Available Distribution Amount for the related Distribution
Date;
second, out of any amounts then on deposit in the
Collection Account that represent payments or other collections of
principal received by the Trust with respect to the Trust Mortgage Loans
or Trust REO Loans in the Loan Group that does not include the Trust
Mortgage Loan or Trust REO Loan in respect of which such Nonrecoverable
Advance was made or in respect of which such Workout-Delayed Reimbursement
Amount is outstanding, and which amounts, but for their application to
reimburse such Nonrecoverable Advance (and/or to pay interest thereon) or
to reimburse such Workout-Delayed Reimbursement Amount, as the case may
be, would be included in the Available Distribution Amount for the related
Distribution Date;
third, solely in the case of the reimbursement of a
Nonrecoverable Advance and/or the payment of interest thereon, out of any
amounts then on deposit in the Collection Account that represent any other
payments or other collections received by the Trust with respect to the
Trust Mortgage Loans or Trust REO Loans in the Loan Group that includes
the Trust Mortgage Loan or Trust REO Loan in respect of which such
Nonrecoverable Advance was made, and which amounts, but for their
application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount for the
related Distribution Date;
fourth, solely in the case of the reimbursement of a
Nonrecoverable Advance and/or the payment of interest thereon, out of any
amounts then on deposit in the Collection Account that represent any other
payments or other collections received by the Trust with respect to the
Trust Mortgage Loans or Trust REO Loans in the Loan Group that does not
include the Trust Mortgage Loan or Trust REO Loan in respect of which such
Nonrecoverable Advance was made, and which amounts, but for their
application to reimburse a Nonrecoverable Advance
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and/or to pay interest thereon, would be included in the Available
Distribution Amount for the related Distribution Date; and
fifth, solely in the case of the reimbursement of a
Nonrecoverable Advance and/or the payment of interest thereon, out of any
other amounts then on deposit in the Collection Account that may be
available to reimburse the subject Nonrecoverable Advance and/or to pay
interest thereon.
(b) If and to the extent that any payment or other collection of
principal received on the Mortgage Pool during any Collection Period is deemed
to be applied in accordance with clause first or second of Section 1.02(a) to
reimburse a Nonrecoverable Advance (or to pay interest thereon) or to reimburse
a Workout-Delayed Reimbursement Amount, then:
(i) the Principal Distribution Amount for the related
Distribution Date shall be reduced by the portion of such payment or other
collection of principal that, but for the application of this Section
1.02(b), would constitute part of such Principal Distribution Amount; and
(ii) depending on whether such payment or other
collection of principal relates to Loan Group 1 or Loan Group 2, there
shall be a corresponding reduction in the Loan Group 1 Principal
Distribution Amount or the Loan Group 2 Principal Distribution Amount, as
applicable, for the related Distribution Date.
(c) If and to the extent that any Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount is reimbursed or interest on any
Nonrecoverable Advance is paid out of payments or other collections of principal
received on the Mortgage Pool (with a corresponding reduction to the Principal
Distribution Amount, and to either or both of the Loan Group 1 Principal
Distribution Amount and the Loan Group 2 Principal Distribution Amount, for the
relevant Distribution Date), and further if and to the extent that the
particular item for which such Advance was originally made or such
Workout-Delayed Reimbursement Amount is outstanding is subsequently collected
out of payments or other collections in respect of the related Trust Mortgage
Loan or Trust REO Loan (such item, upon collection, a "Recovered Amount"), then
(without duplication of amounts already included therein):
(i) the Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such
Recovered Amount was received, shall be increased by an amount equal to
the lesser of (A) such Recovered Amount and (B) any previous reduction in
the Principal Distribution Amount for a prior Distribution Date pursuant
to Section 1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or the payment of interest thereon) or the
reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be; and
(ii) the Loan Group 1 Principal Distribution Amount
and/or the Loan Group 2 Principal Distribution Amount for the Distribution
Date that corresponds to the Collection Period in which such Recovered
Amount was received, shall be increased by an amount equal to the lesser
of (A) such Recovered Amount and (B) any previous reduction in the Loan
Group 1 Principal Distribution Amount and/or the Loan Group 2 Principal
Distribution Amount, as applicable, for a prior Distribution Date pursuant
to Section 1.02(b) above resulting from the reimbursement of the subject
Nonrecoverable Advance (and/or the payment of interest
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thereon) or the reimbursement of the subject Workout-Delayed Reimbursement
Amount, as the case may be;
provided that, if both the Loan Group 1 Principal Distribution Amount and the
Loan Group 2 Principal Distribution Amount for a prior Distribution Date were
reduced pursuant to Section 1.02(b) above as a result of the reimbursement of
the subject Nonrecoverable Advance (and/or the payment of interest thereon) or
the reimbursement of the subject Workout-Delayed Reimbursement Amount, as the
case may be, and if the subject Recovered Amount is not sufficient to cover the
full amount of such reductions, then such Recovered Amount shall be applied to
increase the Loan Group 1 Principal Distribution Amount and the Loan Group 2
Principal Distribution Amount in accordance with, and to the extent permitted
by, clause (ii) of this Section 1.02(c) in reverse order of the application of
payments and other collections of principal on the respective Loan Groups in
accordance with Section 1.02(a) to reimburse the subject Nonrecoverable Advance
(and/or pay interest thereon) or to reimburse the subject Workout-Delayed
Reimbursement Amount, as the case may be.
(d) For purposes of making the adjustments to the Principal
Distribution Amount, the Loan Group 1 Principal Distribution Amount or the Loan
Group 2 Principal Distribution Amount, for any Distribution Date, as
contemplated by this Section 1.02, that amount shall be calculated in accordance
with the definition thereof (without regard to this Section 1.02) and shall
thereafter be adjusted as provided in this Section 1.02.
(e) Nothing contained in this Section 1.02 is intended to limit
the ability of any party hereto that is entitled to reimbursement hereunder for
any unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.03(d) or Section 4.03(d)) to collections of principal received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.02(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
SECTION 1.03. Calculation of LIBOR.
(a) The initial value of LIBOR shall be 4.8225% per annum. Such
value of LIBOR shall be utilized in calculating: (i) with respect to the Class
A-3FL Certificates, (A) the Class A-3FL Floating Swap Payment to be made on the
Class A-3FL Swap Payment Date in April 2006 and (B) the Pass-Through Rate with
respect to the Class A-3FL Certificates for the Distribution Date in April 2006,
and (ii) with respect to the Class AN-FL Certificates, (A) the Class AN-FL
Floating Swap Payment to be made on the Class AN-FL Swap Payment Date in April
2006 and (B) the Pass-Through Rate with respect to the Class AN-FL Certificates
for the Distribution Date in April 2006.
(b) The value of LIBOR applicable to the calculation of the
Class A-3FL Floating Swap Payment to be made on the Class A-3FL Swap Payment
Date and the Class AN-FL Floating Swap Payment to be made on the Class AN-FL
Swap Payment Date in any particular calendar month subsequent to April 2006, as
well as the calculation of the respective Pass-Through Rates with respect to the
Class A-3FL Certificates and the Class AN-FL Certificates for the Distribution
Date in such calendar month (provided that no Class A-3FL Distribution
Conversion or Class AN-FL Distribution Conversion, as applicable, is then in
effect), shall be determined by the Trustee (and promptly reported to the
related Swap Counterparty) on the LIBOR Determination Date in the preceding
calendar month in accordance with the following methodology: LIBOR shall equal
the rate for deposits in U.S. Dollars, for a period equal to one month, which
appears on the Dow Xxxxx Market Service (formerly Telerate) Page 3750 as of
11:00 a.m., London time, on the applicable LIBOR Determination Date. If that
rate does not appear on the Dow Xxxxx Market Service Page 3750, LIBOR will be
determined on the basis of the rates at
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which deposits in U.S. Dollars are offered by any five major reference banks in
the London interbank market selected by the Trustee to provide that bank's
offered quotation of such rates at approximately 11:00 a.m., London time, on the
applicable LIBOR Determination Date to prime banks in the London interbank
market for a period of one month, commencing on the 12th day of the calendar
month in which the applicable LIBOR Determination Date occurs and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Trustee shall request the principal London office of any
five major reference banks in the London interbank market selected by the
Trustee to provide a quotation of those rates, as offered by each such bank. If
at least two such quotations are provided, LIBOR will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, LIBOR
will be the arithmetic mean of the rates quoted by major banks in New York City
selected by the Trustee, at approximately 11:00 a.m., New York City time, on the
applicable LIBOR Determination Date for loans in U.S. Dollars to leading
European banks for a period equal to one month, commencing on the applicable
LIBOR Determination Date and in an amount that is representative for a single
such transaction in the relevant market at the relevant time. The determination
of LIBOR by the Trustee will be binding absent manifest error.
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Trust Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a common law trust under the laws of the State of
New York, designated as "ML-CFC Commercial Mortgage Trust 2006-1" and consisting
of the Trust Fund, and does hereby assign, sell, transfer, 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 Trust Mortgage Loans and all
documents included in the related Mortgage Files and Servicing Files, (ii) the
rights of the Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16, 17,
19 and 20 of each Mortgage Loan Purchase Agreement, (iii) the rights of the
Depositor under each Loan Combination Intercreditor Agreement and (iv) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal received or receivable on or with respect to the
Trust Mortgage Loans and due after the Cut-off Date and, in the case of each
Trust Mortgage Loan that is part of a Loan Combination, is subject to the
provisions of the corresponding Loan Combination Intercreditor Agreement. The
Trustee, on behalf of the Trust, assumes the obligations of the related "A Note
Holder" or "Lead Lender", as the case may be, under the related Loan Combination
Intercreditor Agreement; provided that the Master Servicer shall, as further set
forth in Article III, perform the servicing obligations and exercise the related
rights of the related "A Note Holder" or "Lead Lender", as the case may be,
under each Loan Combination Intercreditor Agreement. The transfer of the Trust
Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 11.07, is intended by the parties to
constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to their
respective Mortgage Loan Purchase Agreements to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer and Special Servicer), on
or before the Closing Date, the Mortgage File for each Trust Mortgage Loan so
assigned. The Special Servicer may request the Master Servicer to deliver a copy
of the Servicing File for any Trust Mortgage Loan (other than a Specially
Serviced Mortgage Loan) if the Master Servicer shall not have granted the
Special Servicer electronic access to such Servicing Files. None of the Trustee,
any Fiscal Agent, any Custodian, the Master Servicer or the Special Servicer
shall be liable for any failure by any Mortgage Loan Seller or the Depositor to
comply with the document delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Trust Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and (viii) of the definition of "Mortgage File", with evidence of
recording thereon, solely because of a delay caused by the public recording
office where such document or instrument has been delivered for recordation, the
delivery requirements of the related Mortgage Loan Purchase Agreement and
Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, if a photocopy of such
non-delivered document or instrument (certified by the applicable Mortgage Loan
Seller to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing
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Date, and either the original of such non-delivered document or instrument, or a
photocopy thereof, with evidence of recording or filing as applicable, thereon,
is delivered to the Trustee or such Custodian within 120 days of the Closing
Date (or within such longer period after the Closing Date as the Trustee may
consent to, which consent shall not be unreasonably withheld so long as the
applicable Mortgage Loan Seller is, in good faith, attempting to obtain from the
appropriate county recorder's office such original or photocopy, as evidenced by
an officer's certificate). If the applicable Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Trust Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and (viii) of the definition of "Mortgage File," with evidence of
recording or filing as applicable, thereon, for any other reason, including,
without limitation, that such non-delivered document or instrument has been
lost, the delivery requirements of the related Mortgage Loan Purchase Agreement
and Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (with evidence of
recording in the proper office thereon and with respect to the item referred to
in clause (ii) of the definition of "Mortgage File", certified by the
appropriate county recorder's office to be a true and complete copy of the
original submitted for recording) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Trust Mortgage Loan, the
applicable Mortgage Loan Seller does not deliver in complete and recordable form
any one of the assignments in favor of the Trustee referred to in clause (iv) or
(v) of the definition of "Mortgage File" (in the case of clause (iv) solely
because of a delay caused by the recording office where such document or
instrument has been delivered for recordation), the applicable Mortgage Loan
Seller may provisionally satisfy the delivery requirements of the related
Mortgage Loan Purchase Agreement and Section 2.01(b) by delivering with respect
to such Trust Mortgage Loan on the Closing Date an omnibus assignment of such
Trust Mortgage Loan; provided that all required original assignments with
respect to such Trust Mortgage Loan in fully complete and recordable form shall
be delivered to the Trustee or its Custodian within 120 days of the Closing Date
(or within such longer period, not to exceed 18 months, as the Trustee in its
reasonable discretion may permit so long as the applicable Mortgage Loan Seller
is, as certified in writing to the Trustee no less often than every 90 days,
attempting in good faith to obtain from the appropriate county recorder's office
such original or photocopy).
(d) The Depositor hereby represents and warrants that with
respect to the Xxxxxxx Trust Mortgage Loans, the Countrywide Trust Mortgage
Loans and the Eurohypo Trust Mortgage Loan, the related Mortgage Loan Seller has
covenanted in the related Mortgage Loan Purchase Agreement that it shall retain
or cause to be retained, an Independent Person (such Person, the
"Recording/Filing Agent") that shall, as to each such Trust Mortgage Loan,
promptly (and in any event within 90 days following the later of the Closing
Date or the delivery of each assignment and UCC Financing Statement to the
Recording/Filing Agent) cause to be submitted, for recording or filing, as the
case may be, in the appropriate public office for real property records or UCC
Financing Statements, each such assignment of Mortgage, each such assignment of
Assignment of Leases and any other recordable documents relating to each such
Trust Mortgage Loan in favor of the Trustee that is referred to in clause (iv)
of the definition of "Mortgage File" and each such UCC Financing Statement
assignment in favor of the Trustee that is referred to in clause (viii) of the
definition of "Mortgage File," in each case pursuant to Section 2(d) of the
related Mortgage Loan Purchase Agreement.
(e) All documents and records in the Servicing File (except
draft documents, privileged communications, credit underwriting or due diligence
analyses, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda,
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communications or evaluations of the Mortgage Loan Seller) in possession of the
Depositor or the Mortgage Loan Sellers that relate to the Trust Mortgage Loans
and that are not required to be a part of a Mortgage File in accordance with the
definition thereof (including any original letter of credit that is not part of
the Mortgage File because the Master Servicer or any Sub-Servicer therefor has
possession thereof), together with all Escrow Payments and Reserve Accounts in
the possession thereof, shall be delivered to the Master Servicer or such other
Person as may be directed by the Master Servicer (at the expense of the
applicable Mortgage Loan Seller) on or before the Closing Date and shall be held
by the Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders; provided, however, the Master Servicer shall have no
responsibility for holding documents created or maintained by the Special
Servicer hereunder and not delivered to the Master Servicer. The applicable
Mortgage Loan Seller shall pay any costs of assignment or amendment of any
letter of credit related to the Trust Mortgage Loans such Mortgage Loan Seller
sold to the Depositor required in order for the Master Servicer to draw on such
letter of credit.
The Master Servicer hereby acknowledges the receipt by it of the
Closing Date Deposit. The Master Servicer shall hold the Closing Date Deposit in
the Collection Account and shall include the Closing Date Deposit in the amounts
it is required to remit to the Trustee on the initial P&I Advance Date. The
Closing Date Deposit shall remain uninvested.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian, the Master
Servicer and the Special Servicer on or before the Closing Date and hereby
represents and warrants that it has delivered a copy of a fully executed
counterpart of each of the Mortgage Loan Purchase Agreements, as in full force
and effect on the Closing Date.
(g) The Depositor hereby consents to the filing of any UCC
Financing Statements contemplated by this Agreement without its consent.
(h) The Trust Fund shall constitute the sole assets of the
Trust. Except as expressly provided herein, the Trust may not issue or invest in
additional securities, borrow money or make loans to other Persons. The fiscal
year end of the Trust shall be December 31.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, acknowledges receipt of the Depositor's assignment to it of the
Depositor's right, title and interest in the assets that constitute the Trust
Fund, and further acknowledges receipt by it or a Custodian on its behalf,
subject to the provisos in the definition of "Mortgage File" and the provisions
of Section 2.01 and subject to the further limitations on review provided for in
Section 2.02(b) and the exceptions noted on the schedule of exceptions of (i)
the Mortgage File delivered to it for each Trust Mortgage Loan and (ii) a copy
of a fully executed counterpart of each Swap Agreement and each Mortgage Loan
Purchase Agreement, all 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 the other documents received by it that constitute portions of the
Mortgage Files, and that it holds and will hold the Trust Mortgage Loans and
other assets 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 for a Trust Mortgage Loan that is part of a Loan Combination
relates to the corresponding Non-Trust Loan, the Trustee shall also hold such
Mortgage File in trust for the use and benefit of the related Non-Trust
Noteholder(s). The Trustee hereby certifies to each of the Depositor, the Master
Servicer, the Special Servicer and each Mortgage Loan Seller that, without
regard to the proviso in the definition of "Mortgage File", each of the
Specially Designated Mortgage Loan
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Documents are in its possession. In addition, within 90 days after the Closing
Date, the Trustee or the Custodian on its behalf will review the Mortgage Files
and certify (in a certificate substantially in the form of Exhibit C) to each of
the Depositor, the Master Servicer, the Special Servicer, each Mortgage Loan
Seller (with copies to the Controlling Class Representative), that, with respect
to each Trust Mortgage Loan listed in the Mortgage Loan Schedule, except as
specifically identified in the schedule of exceptions annexed thereto, (i)
without regard to the proviso in the definition of "Mortgage File," all
documents specified in clauses (i), (ii), (iv)(A), (v) and (vii), and to the
extent provided in the related Mortgage File and actually known by a Responsible
Officer of the Trustee or the Custodian to be required or to the extent listed
on the Mortgage Loan checklist, if any, provided by the related Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement, clauses (iii),
(iv)(B), (iv)(C), (vi), (viii) through (xii) of the definition of "Mortgage
File" are in its possession, (ii) all documents delivered or caused to be
delivered with respect to a Trust Mortgage Loan by the applicable Mortgage Loan
Seller constituting the related Mortgage File have been reviewed by it and
appear regular on their face, appear to be executed and appear to relate to such
Trust Mortgage Loan, and (iii) based on such examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule for
such Trust Mortgage Loan with respect to the items specified in clauses (v) and
(vi)(c) of the definition of "Mortgage Loan Schedule" is correct. Further, with
respect to the documents described in clause (viii) of the definition of
Mortgage File, absent actual knowledge of a Responsible Officer 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 delivered in this Section 2.02(a), that the related Mortgage File
should include one state level UCC Financing Statement filing and one local UCC
Financing Statement fixture filing for each Mortgaged Property (or with respect
to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor).
Amendments with respect to the UCC Financing Statements to be assigned to the
Trust, assigning such UCC Financing Statements 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 of the related Mortgagor as so indicated on the
documents provided. If any exceptions are noted to the certification delivered
to the above-mentioned recipients substantially in the form of Exhibit C, the
Trustee shall, every 90 days after the delivery of such certification until the
second anniversary of the Closing Date, and every 180 days thereafter until the
fifth anniversary of the Closing Date, and thereafter upon request by any party
hereto, any Mortgage Loan Seller or the Plurality Subordinate Certificateholder,
distribute an updated exception report to such recipients; provided that, by
delivery of each such updated exception report, the Trustee shall be deemed to
have made the certifications provided for in Exhibit C as to each Mortgage Loan
or each applicable document (that is to be covered by a certification in the
form of Exhibit C) in respect of a Mortgage Loan that, in each case, is not
identified in such updated exception report.
(b) None of the Trustee, any Fiscal Agent, the Master Servicer,
the Special Servicer or any Custodian is under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Trust Mortgage Loans delivered to it to determine
that the same are valid, legal, effective, genuine, enforceable, in recordable
form, sufficient or appropriate for the represented purpose or that they are
other than what they purport to be on their face.
(c) The Trustee, directly or through a Custodian retained by it,
shall: (i) provide for the safekeeping and preservation of the Mortgage Files
with respect to the Trust Mortgage Loans; (ii) segregate such Mortgage Files
from its own assets and the assets retained by it for others; (iii) maintain
such Mortgage Files in secure and fire resistant facilities in compliance with
customary industry standard; (iv) maintain disaster recovery protocols to ensure
the preservation of such Mortgage Files in the event of force majeure; and (v)
track and monitor the receipt and movement internally and externally of such
Mortgage Files and any release and reinstatement thereof.
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SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution
of Trust Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers (without implying any duty of
such Person to make any inquiry) or receives notice that any document or
documents constituting a part of a Mortgage File with respect to a Trust
Mortgage Loan has not been properly executed, is missing (beyond the time period
required for its delivery hereunder), contains information that does not conform
in any material respect with the corresponding information set forth in the
Mortgage Loan Schedule, or does not appear to be regular on its face (each, a
"Document Defect"), or discovers (without implying any duty of such Person to
make any inquiry) or receives notice of a breach of any representation or
warranty relating to any Trust Mortgage Loan set forth in Schedule I of any
Mortgage Loan Purchase Agreement (a "Breach"), the party discovering such
Document Defect or Breach shall give written notice (which notice, in respect of
any obligation of the Trustee to provide notice of a Document Defect, shall be
deemed given by the delivery of the certificate as required by Section 2.02(a))
to the applicable Mortgage Loan Seller and the other parties hereto. The Trustee
shall then promptly deliver such notice to the Controlling Class Representative
and to the Rating Agencies of such Document Defect or Breach. Promptly upon
becoming aware of any Document Defect or Breach (including through such written
notice provided by any party hereto or the Controlling Class Representative as
provided above), if any party hereto determines that such Document Defect or
Breach materially and adversely affects the value of the affected Trust Mortgage
Loan or the interests of the Certificateholders therein, such party shall notify
the Master Servicer and, if the subject Trust Mortgage Loan is a Specially
Serviced Mortgage Loan, the Special Servicer, of such determination and promptly
after receipt of such notice, the Master Servicer or the Special Servicer, as
applicable, shall request in writing that the applicable Mortgage Loan Seller,
not later than 90 days from receipt of such written request (or, in the case of
a Document Defect or Breach relating to a Trust Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions, not later than
90 days after any party to this Agreement discovers such Document Defect or
Breach) (i) cure such Document Defect or Breach, as the case may be, in
accordance with Section 3(c) of the related Mortgage Loan Purchase Agreement,
(ii) repurchase the affected Trust Mortgage Loan (which for purposes of this
clause (ii) shall include a Trust REO Loan) in accordance with Section 3(c) of
the related Mortgage Loan Purchase Agreement, or (iii) within two years of the
Closing Date, substitute a Qualified Substitute Mortgage Loan for such affected
Trust Mortgage Loan (which for purposes of this clause (iii) shall include a
Trust REO Loan) and pay the Master Servicer for deposit into the Collection
Account any Substitution Shortfall Amount in connection therewith in accordance
with Sections 3(c) and 3(d) of the related Mortgage Loan Purchase Agreement;
provided, however, that if such Document Defect or Breach is capable of being
cured but not within such 90 day period, such Document Defect or Breach does not
relate to the Trust Mortgage Loan not being treated as a "qualified mortgage"
within the meaning of the REMIC Provisions, and the applicable Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90 day period, the applicable Mortgage Loan Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or (subject to clause (iii) above) replace the related Trust
Mortgage Loan (which for purposes of such repurchase or substitution shall
include a Trust REO Loan)); and provided, further, with respect to such
additional 90 day period the applicable Mortgage Loan Seller shall have
delivered an Officer's Certificate to the Trustee setting forth the reasons such
Document Defect or Breach is not capable of being cured within the initial 90
day period and what actions the applicable Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the applicable Mortgage Loan
Seller anticipates such Document Defect or Breach will be cured within the
additional 90 day period; and provided, further, that no Document Defect (other
than with respect to a Specially Designated Mortgage Loan Document) shall be
considered
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to materially and adversely affect the interests of the Certificateholders or
the value of the related Trust Mortgage Loan unless the document with respect to
which the Document Defect exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Trust
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the Trust Mortgage Loan, establishing the validity or priority of any
lien on any collateral securing the Trust Mortgage Loan or for any immediate
servicing obligations. In the event of a Document Defect or Breach as to a Trust
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Trust Mortgage Loans (each a "Crossed Loan" and, collectively, a "Crossed
Loan Group"), and such Document Defect or Breach does not constitute a Document
Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Loan Group (without regard to this paragraph) and is not cured as
provided for above, then the applicable Document Defect or Breach, as the case
may be, shall be deemed to constitute a Document Defect or Breach, as the case
may be, as to any other Crossed Loan in the Crossed Loan Group for purposes of
this paragraph and the related Mortgage Loan Seller shall be required to
repurchase or substitute for all such Crossed Loans unless (1) the weighted
average Debt Service Coverage Ratio for all the remaining related Crossed Loans
for the four calendar quarters immediately preceding such repurchase or
substitution is not less than the weighted average Debt Service Coverage Ratio
for all such Crossed Loans, including the affected Crossed Loan, for the four
calendar quarters immediately preceding such repurchase or substitution, and (2)
the weighted average Loan to-Value Ratio for the remaining related Crossed
Loans, determined at the time of repurchase or substitution, based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the weighted average
Loan-to-Value Ratio for all such Crossed Loans, including the affected Crossed
Loan determined at the time of repurchase or substitution, based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller; provided that if such criteria is satisfied and any
Crossed Loan is not so repurchased or substituted, then such Crossed Loan shall
be released from its cross-collateralization and cross default provision so long
as such Crossed Loan (that is not the Crossed Loan directly affected by the
subject Document Defect or Breach) is held in the Trust Fund; provided, further,
that the repurchase or replacement of less than all such Crossed Loans and the
release from the cross-collateralization and cross-default provision shall be
subject to the delivery by the Mortgage Loan Seller to the Trustee, at the
expense of the Mortgage Loan Seller, of an Opinion of Counsel to the effect that
such release would not cause either of REMIC I or REMIC II to fail to qualify as
a REMIC under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions; and provided, further, that the Controlling Class Representative
shall have consented to the repurchase or replacement of the affected Crossed
Loan, which consent shall not be unreasonably withheld or delayed. In the event
that one or more of such other Crossed Loans satisfy the aforementioned
criteria, the related Mortgage Loan Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Document
Defect or Breach exists or to repurchase or substitute for all of the Crossed
Loans in the related Crossed Loan Group. All documentation relating to the
termination of the cross-collateralization provisions of each Crossed Loan being
repurchased or replaced is to be prepared at the expense of the applicable
Mortgage Loan Seller and, where required, with the consent of the applicable
Mortgagor. For a period of two years from the Closing Date, so long as there
remains any Mortgage File as to which there is any uncured Document Defect and
so long as the applicable Mortgage Loan Seller shall provide the Officer's
Certificate pursuant to Section 3(c) of the related Mortgage Loan Purchase
Agreement, the Trustee shall on a quarterly basis prepare and deliver
electronically to the other parties an updated exception report as to the status
of such uncured Document Defects as provided in Section 2.02(a). If the affected
Trust Mortgage Loan is to be repurchased or substituted, the Master Servicer
shall designate the Collection Account as the account to which funds in the
amount of the Purchase Price or the Substitution Shortfall
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Amount, as applicable, are to be wired. Any such repurchase or substitution of a
Trust Mortgage Loan shall be on a whole loan, servicing released basis.
Pursuant to each Mortgage Loan Purchase Agreement, to the extent
that the related Mortgage Loan Seller is required to repurchase or substitute
for a Crossed Loan thereunder while the Trustee continues to hold any other
Crossed Loan(s) in the related Crossed Loan Group, the related Mortgage Loan
Seller and the Depositor have agreed that neither such party shall enforce any
remedies against the other party's Primary Collateral, but each is permitted to
exercise remedies against the Primary Collateral securing the Crossed Loan(s)
held thereby, so long as such exercise does not materially impair the ability of
the other party to exercise its remedies against the Primary Collateral securing
the Crossed Loan(s) held thereby. Notwithstanding the foregoing, each Mortgage
Loan Seller and the Depositor have agreed that if the exercise by one party
would materially impair the ability of the other party to exercise its remedies
with respect to the Primary Collateral securing the Crossed Loan(s) held by such
party, then each such party shall forbear from exercising such remedies until
the Mortgage Loan documents evidencing and securing the relevant Crossed Loans
can be modified in a manner consistent with the related Mortgage Loan Purchase
Agreement to remove the threat of material impairment as a result of the
exercise of remedies.
(b) In connection with any repurchase or substitution of one or
more Trust Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of the Master Servicer certifying as to the receipt of the applicable
Purchase Price(s) in the Collection Account (in the case of any such repurchase)
or the receipt of the applicable Substitution Shortfall Amount(s) in the
Collection Account and upon the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the Master Servicer, respectively (in the case of any such
substitution), (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it, in each case without recourse, representation
or warranty, as shall be necessary to vest in the applicable Mortgage Loan
Seller the legal and beneficial ownership of each repurchased Trust Mortgage
Loan or deleted Trust Mortgage Loan, as applicable, being released pursuant to
this Section 2.03, (ii) the Trustee, the Custodian, the Master Servicer, and the
Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon
delivery to each of them of a receipt executed by the applicable Mortgage Loan
Seller, all portions of the Mortgage File and other documents pertaining to each
such Mortgage Loan possessed by it and (iii) the Master Servicer and the Special
Servicer shall release to the applicable Mortgage Loan Seller any Escrow
Payments and Reserve Funds held by it in respect of such repurchased or deleted
Trust Mortgage Loan; provided that such tender by the Trustee or the Custodian
shall be conditioned upon its receipt from the Master Servicer or the Special
Servicer of a Request for Release. Thereafter, the Trustee, any Fiscal Agent,
the Custodian, the Master Servicer and the Special Servicer shall have no
further responsibility with regard to the related repurchased Trust Mortgage
Loan(s) or deleted Trust Mortgage Loan(s), as applicable, and the related
Mortgage File(s) and Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the Master Servicer to permit the Master Servicer to do so. The
Master Servicer shall indemnify the Trustee for any reasonable costs, fees,
liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse by the Master Servicer of such powers of attorney.
At the time a substitution is made, the applicable Mortgage Loan Purchase
Agreement will provide that the applicable Mortgage Loan Seller shall be
required to deliver the related Mortgage File to the Trustee and certify that
the substitute Trust Mortgage Loan is a Qualified Substitute Mortgage Loan.
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(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans may be made in any calendar month after the Determination Date for such
month. Periodic Payments due with respect to any Qualified Substitute Mortgage
Loan after the related date of substitution shall be part of REMIC I, as
applicable. No substitution of a Qualified Substitute Mortgage Loan for a
deleted Trust Mortgage Loan shall be permitted under this Agreement if after
such substitution, the aggregate of the Stated Principal Balances of all
Qualified Substitute Mortgage Loans which have been substituted for deleted
Trust Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of all
the Trust Mortgage Loans. Periodic Payments due with respect to any Qualified
Substitute Mortgage Loan on or prior to the related date of substitution shall
not be part of the Trust Fund or REMIC I and will (to the extent received by the
Master Servicer) be remitted by the Master Servicer to the applicable Mortgage
Loan Seller promptly following receipt.
(d) The Mortgage Loan Purchase Agreements and Section 2.03(a) of
this Agreement provide the sole remedies available to the Certificateholders, or
the Trustee on behalf of the Certificateholders, respecting any Document Defect
or Breach with respect to the Trust Mortgage Loans purchased by the Depositor
thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in
the case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of each Mortgage Loan Seller under
Section 3 of the related Mortgage Loan Purchase Agreement.
Notwithstanding anything contained herein or the related Mortgage
Loan Purchase Agreement, no delay in the discovery of a Defect or Breach or
delay on the part of any party to this Agreement in providing notice of such
Defect or Breach shall relieve the related Mortgage Loan Seller of its
obligations to repurchase or substitute if it is otherwise required to do so
under the related Mortgage Loan Purchase Agreement.
If the applicable Mortgage Loan Seller incurs any expense in
connection with the curing of a Document Defect or a Breach which also
constitutes a default under the related Trust Mortgage Loan and is reimbursable
thereunder, such Mortgage Loan Seller shall have a right, and shall be
subrogated to the rights of the Trustee and the Trust Fund, as successor to the
mortgagee, to recover the amount of such expenses from the related Mortgagor;
provided, however, that such Trust Mortgage Loan Seller's rights pursuant to
this paragraph shall be junior, subject and subordinate to the rights of the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent and the
Trust Fund to recover amounts owed by the related Mortgagor under the terms of
such Trust Mortgage Loan, including the rights to recover unreimbursed Advances,
accrued and unpaid interest on Advances at the Reimbursement Rate and unpaid or
unreimbursed expenses of the Trustee, any Fiscal Agent, the Trust Fund, the
Master Servicer or the Special Servicer allocable to such Trust Mortgage Loan.
The Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the
Special Servicer, at such Mortgage Loan Seller's expense, shall use commercially
reasonable efforts to recover such expenses for such Mortgage Loan Seller to the
extent consistent with the Servicing Standard, but taking into account the
subordinate nature of the reimbursement to the Mortgage Loan Seller; provided,
however, that the Master Servicer or, with respect to a Specially Serviced
Mortgage Loan, the Special Servicer determines in the exercise of its sole
discretion consistent with the Servicing Standard that such actions by it will
not impair the Master Servicer's and/or the Special Servicer's collection or
recovery of principal, interest and other sums due with respect to the related
Trust Mortgage Loan which would otherwise be payable to the Master Servicer, the
Special Servicer, the Trustee, any Fiscal Agent, and the Certificateholders
pursuant to the terms of this Agreement.
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SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Master Servicer, the Special Servicer and any Fiscal Agent, 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 execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate
of incorporation or bylaws 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 instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor 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 the Depositor, enforceable against
the Depositor 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) The Depositor 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 the Depositor's good faith
reasonable judgment, is likely to affect materially and adversely either
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the
Trustee as contemplated herein requires no regulatory approval, other than
any such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(vii) 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
reasonable judgment, is likely to materially and adversely affect either
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Trust
Mortgage Loans to the Trust Fund pursuant to Section 2.01(a) of this
Agreement (and assuming that the Mortgage Loan Sellers transferred to the
Depositor good and marketable title to their respective Mortgage Loans
free and clear of all liens, claims, encumbrances and other interests),
(A) the Depositor had good
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and marketable title to, and was the sole owner and holder of, each Trust
Mortgage Loan; and (B) the Depositor has full right and authority to sell,
assign and transfer the Trust Mortgage Loans and all servicing rights
pertaining thereto.
(ix) The Depositor is transferring the Trust Mortgage
Loans to the Trust Fund free and clear of any liens, pledges, charges and
security interests created by or through the Depositor.
(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 Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties.
SECTION 2.05. Acceptance of REMIC I and Grantor Trusts by
Trustee.
The Trustee acknowledges the assignment to it of the Trust Mortgage
Loans and the other property comprising REMIC I and the Additional Interest and
the other property comprising Grantor Trust Z and declares that it holds and
will hold the same in trust for the exclusive use and benefit of: in the case of
REMIC I, all present and future Holders of the Class R-I Certificates and REMIC
II as the holder of the REMIC I Regular Interests; and in the case of Grantor
Trust Z, all present and future holders of the Class Z Certificates.
SECTION 2.06. Execution, Authentication and Delivery of Class
R-I Certificates; Issuance of REMIC I Regular
Interests.
In exchange for the assets included in REMIC I, REMIC I Regular
Interests have been issued, and pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Certificate Registrar has executed,
and the Authenticating Agent has authenticated and delivered to or upon the
order of the Depositor, the Class R-I Certificates in authorized denominations.
SECTION 2.07. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II 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 the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the respective Holders of the REMIC
II 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 II
Certificates.
SECTION 2.08. Execution, Authentication and Delivery of REMIC II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, the Class A-3FL REMIC II Regular
Interest and the Class AN-FL REMIC II Regular Interest have been issued, and
pursuant to the written request of the Depositor, executed by an officer of the
Depositor, the Certificate Registrar has executed, and the Authenticating Agent
has authenticated and delivered to or upon the order of the Depositor, the REMIC
II Certificates in authorized denominations, evidencing, together with the Class
A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular Interest,
the entire beneficial ownership of REMIC II. The rights of the
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holders of the respective Classes of REMIC II Certificates, Grantor Trust A-3FL
as holder of the Class A-3FL REMIC II Regular Interest and Grantor Trust AN-FL
as holder of the Class AN-FL REMIC II Regular Interest to receive distributions
from the proceeds of REMIC II in respect of their REMIC II Certificates, the
Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC II Regular
Interest, as the case may be, and all ownership interests evidenced or
constituted by the respective Classes of REMIC II Certificates, the Class A-3FL
REMIC II Regular Interest and the Class AN-FL REMIC II Regular Interest in such
distributions, shall be as set forth in this Agreement.
SECTION 2.09. Conveyance of Class A-3FL REMIC II Regular
Interest and Class AN-FL REMIC II Regular
Interest; Acceptance of Grantor Trust A-3FL and
Grantor Trust AN-FL 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 the right, title and interest of the Depositor in and to the Class A-3FL
REMIC II Regular Interest and the Class AN-FL REMIC II Regular Interest to the
Trustee for the benefit of the Holders of the Class A-3FL Certificates and the
Holders of the Class AN-FL Certificates, respectively. The Trustee acknowledges
the assignment to it of the Class A-3FL REMIC II Regular Interest and the Class
AN-FL REMIC II Regular Interest 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 Class A-3FL Certificates and the Class AN-FL Certificates,
respectively.
SECTION 2.10. Execution, Authentication and Delivery of Class Z,
Class A-3FL and Class AN-FL Certificates.
Concurrently with the assignment to it of (i) the Additional
Interest and the other assets of Grantor Trust Z, (ii) the Class A-3FL REMIC II
Regular Interest and the other assets of Grantor Trust A-3FL and (iii) the Class
AN-FL REMIC II Regular Interest and the other assets of Grantor Trust AN-FL, and
in exchange therefor, the Certificate Registrar, pursuant to the written request
of the Depositor executed by an officer of the Depositor, has executed, and the
Authenticating Agent has authenticated, and delivered to or upon the order of
the Depositor, the Class Z Certificates, the Class A-3FL Certificates and the
Class AN-FL Certificates.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders (or, in the case of any Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in
accordance with any and all applicable laws, the terms of this Agreement, the
terms of the respective Mortgage Loans and, in the case of a Loan Combination,
the terms of the related Loan Combination Intercreditor Agreement (which, in the
event of any conflict with this Agreement, shall control), to the extent
consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the
Master Servicer shall service and administer all Mortgage Loans that are not
Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service
and administer each Specially Serviced Mortgage Loan and REO Property and shall
render such services with respect to all Mortgage Loans and REO Properties as
are specifically provided for herein; provided that the Master Servicer shall
continue to receive payments, and prepare, or cause to be prepared, all reports
required hereunder, except for the reports specified herein, as prepared by the
Special Servicer with respect to the Specially Serviced Mortgage Loans, as if no
Servicing Transfer Event had occurred and with respect to the REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred, and to render
such incidental services with respect to the Specially Serviced Mortgage Loans
and REO Properties as are specifically provided for herein; provided, further,
that the Master Servicer shall not be liable for its failure to comply with such
duties insofar as such failure results from a failure by the Special Servicer to
provide sufficient information to the Master Servicer to comply with such duties
or failure by the Special Servicer to otherwise comply with its obligations
hereunder. All references herein to the respective duties of the Master Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a), Section 6.11 and Section 6.12,
the Master Servicer and the Special Servicer each shall have full power and
authority, acting alone (or, pursuant to Section 3.22, through one or more
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 of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement,
by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the
Certificateholders, the Trustee and each such Non-Trust Noteholder, (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by any Mortgage or other
security document in the related Mortgage File on the related Mortgaged Property
and related collateral; (ii) in accordance with the Servicing Standard and
subject to Section 3.20, Section 6.11 and Section 6.12, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; (iii) any and all instruments
of satisfaction or cancellation, or of partial or full release, discharge, or
assignment, and all other comparable instruments; and (iv) pledge agreements and
other defeasance documents in connection with a defeasance contemplated pursuant
to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written
request of the Master Servicer or the Special Servicer, promptly execute any
limited powers of attorney and other documents furnished by the
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Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name (or,
in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's
name) without indicating the Master Servicer's or Special Servicer's as
applicable, representative capacity; or (ii) take any action with the intent to
cause, and that actually does cause, the Trustee to be registered to do business
in any state.
(c) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venture or
partner or agent. Unless the same Person acts as both Master Servicer and
Special Servicer, the Master Servicer shall not be responsible for the actions
of or failure to act by the Special Servicer and the Special Servicer shall not
be responsible for the actions of or the failure to act by the Master Servicer.
(d) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer, the Trustee or any Fiscal Agent make a Servicing
Advance with respect to any Non-Trust Loan to the extent the related Trust
Mortgage Loan has been paid in full or is no longer included in the Trust Fund.
(e) Neither the Master Servicer nor the Special Servicer shall
have any liability for the failure of any Mortgage Loan Seller to perform its
obligations under the related Mortgage Loan Purchase Agreement.
(f) The parties hereto acknowledge that each Loan Combination is
subject to the terms and conditions of the related Loan Combination
Intercreditor Agreement. The parties hereto further recognize the respective
rights and obligations of the related Non-Trust Noteholder(s) under the related
Loan Combination Intercreditor Agreement, including with respect to (i) the
allocation of collections on or in respect of the applicable Loan Combination,
and the making of payments, to such Non-Trust Noteholder(s) in accordance with
the related Loan Combination Intercreditor Agreement, (ii) the allocation of
expenses and/or losses relating to the subject Loan Combination to such
Non-Trust Noteholder(s) in accordance with the related Loan Combination
Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its
designee to purchase the related Trust Mortgage Loan in accordance with the
related Loan Combination Intercreditor Agreement.
(g) With respect to any Loan Combination that includes a Trust
Mortgage Loan, in the event that either the related Trust Mortgage Loan or the
related Loan Combination REO Property (or any interest therein) is no longer an
asset of the Trust Fund and, except as contemplated in the second paragraph of
this Section 3.01(g), in accordance with the related Loan Combination
Intercreditor Agreement, the servicing and administration of such Loan
Combination and any related Loan Combination REO Property are to be governed by
a separate servicing agreement and not by this Agreement, then (either (i) with
the consent or at the request of the holders of each Mortgage Loan comprising
such Loan Combination or (ii) if expressly provided for in or pursuant to the
related Loan Combination Intercreditor Agreement) the Master Servicer and, if
such Loan Combination is then being specially serviced hereunder or the related
Loan Combination Mortgaged Property has become a Loan Combination REO Property,
the Special Servicer, shall continue to act in such capacities under such
separate servicing agreement; provided that such separate servicing agreement
shall be reasonably acceptable to the Master Servicer and/or the Special
Servicer, as the case may be, and shall contain
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servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that such Loan Combination and
the related Loan Combination Mortgaged Property shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder.
Further, with respect to any Loan Combination that includes a Trust
Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any
related Loan Combination REO Property (or any interest therein) is an asset of
the Trust Fund, and if a separate servicing agreement with respect to such Loan
Combination or any related Loan Combination REO Property, as applicable, has not
been entered into as contemplated by the related Loan Combination Intercreditor
Agreement and the prior paragraph (for whatever reason, including the failure to
obtain any rating agency confirmation required in connection therewith pursuant
to the related Loan Combination Intercreditor Agreement), and notwithstanding
that neither the related Trust Mortgage Loan nor any related Loan Combination
REO Property (or any interest therein) is an asset of the Trust Fund, then,
unless directed otherwise by the then current holders of the Mortgage Notes
comprising such Loan Combination, the Master Servicer and, if applicable, the
Special Servicer shall continue to service and administer such Loan Combination
and/or any related Loan Combination REO Property, for the benefit of the
respective holders of such Loan Combination, under this Agreement as if such
Loan Combination or any related Loan Combination REO Property were the sole
assets subject hereto.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Mortgage Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided that with respect to the Mortgage Loans
that have Anticipated Repayment Dates, so long as the related Mortgagor is
otherwise in compliance with each provision of the related Mortgage Loan
documents, the Master Servicer and Special Servicer (including the Special
Servicer in its capacity as a Certificateholder), shall not take any enforcement
action with respect to the failure of the related Mortgagor to make any payment
of Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided, further, that the Master
Servicer or Special Servicer, as the case may be, may take action to enforce the
Trust Fund's right to apply excess cash flow to principal in accordance with the
terms of the Mortgage Loan documents. The Master Servicer may, in its
discretion, with respect to Mortgage Loans that have Anticipated Repayment
Dates, waive any or all of the Additional Interest accrued on any such Mortgage
Loan if the Mortgagor is ready and willing to pay all other amounts due under
such Mortgage Loan in full, including the Stated Principal Balance, provided
that it acts in accordance with the Servicing Standard and it has received the
consent of the Special Servicer and the Controlling Class Representative (which
consent will be deemed granted if not denied in writing within 10 Business Days
after the Special Servicer's receipt of the Master Servicer's request for such
consent), and neither the Master Servicer nor the Special Servicer will have any
liability to the Trust Fund, the Certificateholders or any other person for any
determination that is made in accordance with the Servicing Standard. The Master
Servicer, with regard to a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, may waive any Default Charges in connection with any payment on
such Mortgage Loan two (2) times during any period of 12 consecutive months and
no more than four (4) times following the Closing Date, unless such Default
Charges would otherwise be payable to the Master Servicer pursuant to Section
3.26. No such additional waiver shall be permitted without the consent of the
Controlling Class Representative, which consent shall be deemed granted if not
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denied in writing (which may be sent via facsimile transmission or electronic
mail) within five Business Days of such request. Notwithstanding any of the
foregoing, in the case of the Xxxxxxx Trust Mortgage Loans identified on
Schedule VII, the Master Servicer and the Special Servicer shall not take any
enforcement action with respect to the failure of a Mortgagor to make any
payment of a late payment charge or demand payment of a late payment charge from
a Mortgagor, in each case prior the expiration of the grace period for Periodic
Payments, if any, set forth in the related Mortgage Loan documents.
(b) All amounts collected in respect of any Mortgage Loan in
the form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note, loan agreement (if any) and
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
Note, loan agreement (if any) and Mortgage (and, with respect to any Loan
Combination, the related Loan Combination Intercreditor Agreement and the
documents evidencing and securing the related Non-Trust Loan(s)) except as
otherwise provided herein or, if required pursuant to the express provisions of
the related Mortgage or as determined by the Master Servicer or Special Servicer
in accordance with the Servicing Standard, to the repair or restoration of the
related Mortgaged Property, and, in the absence of such express provisions,
shall be applied (after reimbursement or payment, first, to the Trustee and any
Fiscal Agent, and second, to the Master Servicer or Special Servicer, as
applicable, for any unpaid Master Servicing Fee, Special Servicing Fee,
Principal Recovery Fee, liquidation expenses and related Additional Trust Fund
Expenses) for purposes of this Agreement: first, in connection with Liquidation
Proceeds or Insurance Proceeds as a recovery of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts with respect to such Mortgage Loan that
were paid from principal collections on the Mortgage Pool (including
Unliquidated Advances) and resulted in principal distributed to the
Certificateholders being reduced; second, as a recovery of any other related and
unreimbursed Advances plus unpaid interest accrued thereon; third, as a recovery
of accrued and unpaid interest at the related Mortgage Rate (net of the Master
Servicing Fee Rate) on such Mortgage Loan, to the extent such amounts have not
been previously advanced, and exclusive of any portion thereof that constitutes
Additional Interest; fourth, as a recovery of principal of such Mortgage Loan
then due and owing, including, without limitation, by reason of acceleration of
such Mortgage Loan following a default thereunder, to the extent such amounts
have not been previously advanced; fifth, as a recovery of Default Charges due
and owing on such Mortgage Loan; sixth, in accordance with the normal servicing
practices of the Master Servicer, as a recovery of any other amounts then due
and owing under such Mortgage Loan (other than Additional Interest), including,
without limitation, Prepayment Premiums and Yield Maintenance Charges; seventh,
as a recovery of any remaining principal of such Mortgage Loan to the extent of
its entire remaining unpaid principal balance; and eighth, with respect to any
ARD Loan after its Anticipated Repayment Date, as a recovery of any unpaid
Additional Interest. All amounts collected on any Trust Mortgage Loan in the
form of Liquidation Proceeds of the nature described in clauses (iv) through
(ix) of the definition thereof shall be deemed to be applied (after
reimbursement or payment first to any Fiscal Agent, second to the Trustee and
third to the Master Servicer or Special Servicer, as applicable, for any unpaid
Master Servicing Fee, Special Servicing Fee, Principal Recovery Fee, liquidation
expenses and related Additional Trust Fund Expenses): first, as a recovery of
any related and unreimbursed Advances plus unpaid interest accrued thereon;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate (net of the Master Servicing Fee Rate) on such Mortgage Loan to but not
including the Due Date in the Collection Period of receipt, to the extent such
amounts have not been previously advanced, and exclusive of any portion thereof
that constitutes Additional Interest; third, as a recovery of principal of such
Mortgage Loan up to its entire unpaid principal balance, to the extent such
amounts have not been previously advanced; and fourth, with respect to any ARD
Loan after its Anticipated
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Repayment Date, as a recovery of any unpaid Additional Interest. Amounts
collected on any REO Loan shall be deemed to be applied in accordance with the
definition thereof. The provisions of this paragraph with respect to the
application of amounts collected on any Mortgage Loan shall not alter in any way
the right of the Master Servicer, the Special Servicer or any other Person to
receive payments from the Collection Account as set forth in Section 3.05(a)
from amounts so applied.
(c) To the extent consistent with the terms of the related
Mortgage Loan and applicable law, the Master Servicer shall apply all Insurance
Proceeds and condemnation proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan as if such Insurance
Proceeds and condemnation proceeds were received on the Due Date immediately
succeeding the month in which such Insurance Proceeds and condemnation proceeds
were received.
(d) In the event that the Master Servicer or Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that the Master Servicer or Special Servicer will be
receiving Additional Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will, to the extent not included in the related
CMSA Loan Periodic Update File, promptly notify the Trustee. Subject to the
provisions of Section 3.02(a) hereof, none of the Master Servicer, the Trustee,
any Fiscal Agent or the Special Servicer shall be responsible for any such
Additional Interest not collected after notice from the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which
the Mortgagor was required to escrow funds or to post a letter of credit related
to obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer (with the consent of the Special Servicer),
to the extent the Mortgage Loan documents provide for any discretion, with
respect to non-Specially Serviced Mortgage Loans, or the Special Servicer, with
respect to Specially Serviced Mortgage Loans shall, to the extent consistent
with the Servicing Standard, hold such escrows, letters of credit and proceeds
thereof as additional collateral and not apply such items to reduce the
principal balance of such Mortgage Loan unless otherwise required to do so
pursuant to the applicable Mortgage Loan documents, applicable law or the
Servicing Standard.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained, and shall administer
such accounts in accordance with the terms of the Mortgage Loan documents;
provided that, in the case of a Loan Combination, if the related Servicing
Account includes funds with respect to any other Mortgage Loan, then the Master
Servicer shall maintain a separate sub-account of such Servicing Account that
relates solely to such Loan Combination. Each Servicing Account with respect to
a Mortgage Loan shall be an Eligible Account unless not permitted by the terms
of the applicable Mortgage Loan documents. Withdrawals of amounts so collected
from a Servicing Account may be made (to the extent of amounts on deposit
therein in respect of the related Mortgage Loan or, in the case of clauses (iv)
and (v) below, to the extent of interest or other income earned on such amounts)
only for the following purposes: (i) consistent with the related Mortgage Loan
documents, 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 respective
Mortgaged Properties; (ii) insofar as the particular Escrow Payment represents a
late payment that was intended to cover an item described in the immediately
preceding clause (i) for which a Servicing Advance was made, to reimburse the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as
applicable, for any such Servicing Advance (provided that any interest
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thereon may only be withdrawn from the Collection Account), (iii) to refund to
Mortgagors any sums as may be determined to be overages; (iv) to pay interest,
if required by law or the related Mortgage Loan documents and as described
below, to Mortgagors on balances in the respective Servicing Accounts; (v) to
pay the Master Servicer interest and investment income on balances in the
Servicing Accounts as described in Section 3.06(b), if and to the extent not
required by law or the terms of the related Mortgage Loan documents to be paid
to the Mortgagor; (vi) during an event of default under the related Mortgage
Loan, for any other purpose permitted by the related Mortgage Loan documents,
applicable law and the Servicing Standard; (vii) to withdraw amounts deposited
in error; (viii) to clear and terminate the Servicing Accounts at the
termination of this Agreement in accordance with Section 9.01; or (ix) only as,
when and to the extent permitted under the Mortgage Loan documents, to effect
payment of accrued and unpaid late charges, default interest and other
reasonable fees. To the extent permitted by law or the applicable Mortgage Loan
documents, funds in the Servicing Accounts may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06 and in accordance
with the terms of the related Mortgage Loan documents. The Master Servicer shall
pay or cause to be paid to the Mortgagors interest, if any, earned on the
investment of funds in the related Servicing Accounts maintained thereby, if
required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account 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. The Servicing
Accounts shall not be considered part of the segregated pool of assets
constituting, REMIC I, REMIC II, Grantor Trust A-3FL, Grantor Trust AN-FL or
Grantor Trust Z.
(b) The Master Servicer, with respect to Mortgage Loans that
are not Specially Serviced Mortgage Loans, or the Special Servicer with respect
to Specially Serviced Mortgage Loans and REO Loans, shall (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 to obtain, from time to time,
all bills for (or otherwise confirm) the payment of such items (including
renewal premiums) and, if the subject Mortgage Loan required the related
Mortgagor to escrow for such items, shall effect payment thereof prior to the
applicable penalty or termination date and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items. For purposes of effecting any
such payment for which it is responsible, the Master Servicer shall apply Escrow
Payments (at the direction of the Special Servicer for Specially Serviced
Mortgage Loans and REO Loans) as allowed under the terms of the related Mortgage
Loan or, if such Mortgage Loan does not require the related Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Master Servicer shall, as to all
Mortgage Loans, use reasonable efforts consistent with the Servicing Standard to
cause the Mortgagor to comply with the requirement of the related Mortgage that
the Mortgagor make payments in respect of such items at the time they first
become due, and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items.
(c) The Master Servicer shall, as to all Mortgage Loans, 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
payment of the costs and expenses described in the definition of "Servicing
Advances", provided that the Master Servicer shall not make any Servicing
Advance prior to the penalty date or cancellation date, as applicable, if the
Master Servicer reasonably anticipates in accordance with the Servicing Standard
that the Mortgagor will pay such amount on or before the penalty date or
cancellation date, and provided, further, that the Master Servicer shall not be
obligated to make any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. All such
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Servicing Advances shall be reimbursable in the first instance from related
collections from the Mortgagors, and in the case of REO Properties, from the
operating revenues related thereto, and further as provided in Section 3.05(a)
and/or Section 3.05(e). No costs incurred by the Master Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes of this
Agreement, including, without limitation, the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
The Special Servicer shall give the Master Servicer, the Trustee and
any Fiscal Agent not less than five Business Days' notice with respect to
Servicing Advances to be made on any Specially Serviced Mortgage Loan or REO
Property, before the date on which the Master Servicer is required to make any
Servicing Advance with respect to a given Mortgage Loan or REO Property;
provided, however, that the Special Servicer may (without implying any duty to
do so) make any Servicing Advance on a Specially Serviced Mortgage Loan or REO
Property only as may be required on an urgent or emergency basis. In addition,
the Special Servicer shall provide the Master Servicer, the Trustee and any
Fiscal Agent with such information in its possession as the Master Servicer, the
Trustee or any Fiscal Agent, as applicable, may reasonably request to enable the
Master Servicer, the Trustee or any Fiscal Agent, as applicable, to determine
whether a requested Servicing Advance would constitute a Nonrecoverable
Servicing Advance. The Special Servicer shall not be entitled to deliver such a
notice (other than for emergency Servicing Advances) more frequently than once
per calendar month (although such notice may relate to more than one Servicing
Advance). The Master Servicer will have the obligation to make any such
Servicing Advance (other than a Nonrecoverable Servicing Advance) that it is so
requested by a Special Servicer to make, within five Business Days after the
Master Servicer's receipt of such request. If the request is timely and properly
made, the Special Servicer shall be relieved of any obligations with respect to
a Servicing Advance that it so requests the Master Servicer to make with respect
to any Specially Serviced Mortgage Loan or REO Property (regardless of whether
or not the Master Servicer shall make such Servicing Advance). The Master
Servicer shall be entitled to reimbursement for any Servicing Advance made by it
at the direction of a Special Servicer, together with interest accrued thereon,
at the same time, in the same manner and to the same extent as the Master
Servicer is entitled with respect to any other Servicing Advances made thereby.
Any request by the Special Servicer that the Master Servicer make a Servicing
Advance shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the
Master Servicer shall be entitled to conclusively rely on such determination. On
the fourth Business Day before each Distribution Date, the Special Servicer
shall report to the Master Servicer the Special Servicer's determination that
any Servicing Advance previously made with respect to a Specially Serviced
Mortgage Loan or REO Loan is a Nonrecoverable Servicing Advance. The Master
Servicer shall act in accordance with such determination.
No later than 1:00 p.m., New York City time, on the first
Determination Date that follows the date on which it makes any Servicing
Advance, the Special Servicer shall provide the Master Servicer an Officer's
Certificate (via facsimile) setting forth the details of the Servicing Advance,
upon which the Master Servicer may conclusively rely in reimbursing the Special
Servicer. The Master Servicer shall be obligated, out of its own funds, to
reimburse the Special Servicer for any unreimbursed Servicing Advances (other
than Nonrecoverable Servicing Advances) made by the Special Servicer together
with interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Any such reimbursement, together with any
accompanying payment of interest, shall be made by the Master Servicer, by wire
transfer of immediately available funds to an account
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designated by the Special Servicer, no later than the first P&I Advance Date
that is at least three (3) Business Days after the date on which the Master
Servicer receives the corresponding Officer's Certificate contemplated by the
prior sentence; provided that any such Officer's Certificate received after 1:00
p.m., New York City time, on any particular date shall, for purposes of any such
reimbursement, be deemed received on the next succeeding Business Day. Upon its
reimbursement to the Special Servicer of any Servicing Advance and payment to
the Special Servicer of interest thereon, the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer actually made such Servicing Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest accrued thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance at the time
the Special Servicer did.
Notwithstanding the foregoing provisions of this Section 3.03(c),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
the Master Servicer determines in accordance with the Servicing Standard that
such Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a) or 3.05(e).
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible Officer of the Trustee
has actual knowledge of such failure on the part of the Master Servicer, give
written notice of such failure to the Master Servicer. If such Servicing Advance
is not made by the Master Servicer within five Business Days after such notice
then (subject to a determination that such Servicing Advance would not be a
Nonrecoverable Servicing Advance) the Trustee shall make such Servicing Advance.
If the Trustee does not make such Servicing Advance within such period, any
Fiscal Agent shall make such Servicing Advance within such period. Any failure
by the Master Servicer to make a Servicing Advance hereunder shall constitute an
Event of Default by the Master Servicer subject to and as provided in Section
7.01.
(d) In connection with its recovery of any Servicing Advance
from the Collection Account pursuant to Section 3.05(a) or from a Loan
Combination Custodial Account pursuant to Section 3.05(e), as applicable, each
of the Master Servicer, the Special Servicer, the Trustee and any Fiscal Agent
shall be entitled to receive, out of amounts then on deposit in the Collection
Account as provided in Section 3.05(a) or in such Loan Combination Custodial
Account as provided in Section 3.05(e), as applicable, any unpaid interest at
the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance (to the extent made with its own funds) from the date
made to but not including the date of reimbursement, such interest to be
payable: first, out of Default Charges received on the related Mortgage Loans
and REO Properties during the Collection Period in which such reimbursement is
made, and to the extent that such Default Charges are insufficient, but only
after or at the same time the related Advance has been or is reimbursed pursuant
to this Agreement, then from general collections on the Trust Mortgage Loans
then on deposit in the Collection Account or in such Loan Combination Custodial
Account, as applicable; provided that interest on Servicing Advances with
respect to a Loan Combination or any related Loan Combination Mortgaged Property
shall, to the maximum extent permitted under the related Loan Combination
Intercreditor Agreement, be payable out
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of amounts otherwise payable to the related B-Note Loan Holder and/or payments
received from the related B-Note Loan Holder under the related Loan Combination
Intercreditor Agreement for such purpose. Subject to any exercise of the option
to defer reimbursement for Advances pursuant to Section 4.03(f), the Master
Servicer shall reimburse itself, the Special Servicer, the Trustee or any Fiscal
Agent, as applicable, for any outstanding Servicing Advance made thereby as soon
as practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 3.03(d) on any Servicing Advance as to which the corresponding Escrow
Payment or other similar payment by the Mortgagor was received by the Master
Servicer on or prior to the date the related Servicing Advance was made.
(e) The determination by the Master Servicer or the Special
Servicer that either has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made in accordance with the Servicing Standard and shall be
evidenced by an Officer's Certificate delivered promptly to the Trustee, any
Fiscal Agent, the Depositor and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s), setting forth the basis for such determination,
together with a copy of any Appraisal (the cost of which may be paid out of the
Collection Account pursuant to Section 3.05(a) or, in the case of a Loan
Combination, out of the related Loan Combination Custodial Account pursuant to
Section 3.05(e)) of the related Mortgaged Property or REO Property, as the case
may be, which Appraisal shall be obtained pursuant to Section 3.09(a) by the
Master Servicer, or by or on behalf of the Special Servicer if the Mortgage Loan
is a Defaulted Mortgage Loan (or, if no such Appraisal has been performed, a
copy of an Appraisal of the related Mortgaged Property or REO Property,
performed within the twelve months preceding such determination and the party
delivering such appraisal has no actual knowledge of a material adverse change
in the condition of the related Mortgaged Property that would draw into question
the applicability of such Appraisal) and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property and any engineers' reports, environmental
surveys or similar reports that the Master Servicer or the Special Servicer may
have obtained and that support such determination. The Trustee and any Fiscal
Agent shall act in accordance with any determination made by the Master Servicer
or the Special Servicer that a Servicing Advance, if made, would be a
Nonrecoverable Advance and shall be entitled to rely, conclusively, on such
determination by the Master Servicer or the Special Servicer; provided, however,
that if the Master Servicer has failed to make a Servicing Advance for reasons
other than a determination by the Master Servicer or the Special Servicer that
such Servicing Advance would be a Nonrecoverable Advance, the Trustee or any
Fiscal Agent shall make such Servicing Advance within the time periods required
by Section 3.03(c) unless the Trustee or any Fiscal Agent in good faith makes a
determination that such Servicing Advance would be a Nonrecoverable Advance. The
applicable Person 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.
(f) The Master Servicer shall, as to all Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of a Loan Combination, if the related
Reserve Account includes funds with respect to any other Mortgage Loan, then the
Master Servicer shall maintain a separate sub-account of such Reserve Account
that relates solely to such Loan Combination. Withdrawals of amounts so
deposited may be made (i) to pay for, or to reimburse the related Mortgagor in
connection with, the related environmental remediation, repairs and/or capital
improvements at the related Mortgaged Property if the repairs and/or capital
improvements have been completed, and such withdrawals are made in accordance
with the Servicing Standard and the terms of the related Mortgage
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Note, Mortgage and any agreement with the related Mortgagor governing such
Reserve Funds and any other items for which such Reserve Funds were intended
pursuant to the loan documents, (ii) to pay the Master Servicer interest and
investment income earned on amounts in the Reserve Accounts if permitted under
the related Mortgage Loan documents and (iii) during an event of default under
the related Mortgage Loan, for any other purpose permitted by the related
Mortgage Loan documents, applicable law and the Servicing Standard. To the
extent permitted in the applicable Mortgage Loan documents, funds in the Reserve
Accounts to the extent invested may be only invested in Permitted Investments in
accordance with the provisions of Section 3.06. All Reserve Accounts shall be
Eligible Accounts. The Reserve Accounts shall not be considered part of the
segregated pool of assets comprising REMIC I, REMIC II, Grantor Trust A-3FL,
Grantor Trust AN-FL or Grantor Trust Z. Consistent with the Servicing Standard,
the Master Servicer may waive or extend the date set forth in any agreement
governing such Reserve Funds by which the required repairs and/or capital
improvements at the related Mortgaged Property must be completed.
(g) Notwithstanding anything to the contrary in this Agreement,
but subject to the limitations on reimbursements in Section 4.03, the Master
Servicer may (and, at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved, shall) pay directly out
of the Collection Account or, with respect to a servicing expense relating to a
Non-Trust Loan or related to a Loan Combination Mortgaged Property, out of the
related Loan Combination Custodial Account any servicing expense that, if paid
by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance for the subject Mortgage Loan or REO Property;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole) (or, with respect to
a Loan Combination, to the extent paid out of the related Loan Combination
Custodial Account, in the best interests of the Certificateholders and the
related Non-Trust Noteholder(s), as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Depositor, the Trustee and the
Controlling Class Representative, setting forth the basis for such determination
and accompanied by any information that such Person may have obtained that
supports such determination. The Master Servicer and the Special Servicer shall
deliver a copy of any such Officer's Certificate (and accompanying information)
promptly to the other such Person.
(h) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of a Mortgage Loan (each of
which Mortgage Loans is listed on Schedule VI hereto), the Master Servicer shall
request from the Mortgagor 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 repairs, capital
improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions 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 be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(h), the Master Servicer shall determine
whether the Mortgagor has failed to perform its obligations under the respective
Mortgage Loan and report any such failure to the Special Servicer within a
reasonable time after the date as of which such operations and maintenance plan
is required to be established or executed or the date as of which such actions
or remediations are required to be or to have been taken or completed.
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SECTION 3.04. Collection Account, Interest Reserve Account,
Additional Interest Account, Distribution Account,
Gain-on-Sale Reserve Account, Floating Rate
Account and Loan Combination Custodial Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Collection Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders. The Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within one Business Day of receipt of
available funds (in the case of payments by Mortgagors or other collections on
the Trust Mortgage Loans) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf subsequent to the Cut-off Date (other than in respect of principal and
interest on the Trust Mortgage Loans due and payable on or before the Cut-off
Date, which payments shall be delivered promptly to the applicable Mortgage Loan
Seller or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse), other than amounts received from Mortgagors which
are to be used to purchase defeasance collateral, or payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal of the Trust
Mortgage Loans including Principal Prepayments;
(ii) all payments on account of interest on the Trust
Mortgage Loans including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges
and late payment charges received in respect of the Trust Mortgage Loans;
(iv) all Insurance Proceeds and Liquidation Proceeds
(other than Gain-on-Sale Proceeds) received in respect of any Trust
Mortgage Loan, and together with any amounts representing recoveries of
Workout-Delayed Reimbursement Amounts and/or Nonrecoverable Advances in
respect of the related Trust Mortgage Loans, in each case to the extent
not otherwise required to be applied to the restoration of the Mortgaged
Property or released to the related Mortgagor;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO
Account pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and
Substitution Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master
Servicer pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls and Casualty/Condemnation Interest Shortfalls;
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(x) any amount paid by or on behalf of a Mortgagor to
cover items for which a Servicing Advance has been previously made, and
payments collected in respect of Unliquidated Advances;
(xi) any amounts representing a reimbursement, payment
and/or contribution due and owing to the Trust from a Non-Trust Noteholder
in accordance with the related Loan Combination Intercreditor Agreement;
and
(xii) any amounts required to be transferred from any Loan
Combination Custodial Account pursuant to Section 3.05(e);
provided that, in the case of a Trust Mortgage Loan that is part of a Loan
Combination, any amounts required to be deposited in the related Loan
Combination Custodial Account, pursuant to Section 3.04(h), shall first be so
deposited therein and shall thereafter be transferred to the Collection Account
only to the extent provided in Section 3.05(e).
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and (d), need not be deposited by the Master Servicer in the Collection
Account. If the Master Servicer shall deposit in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional special servicing compensation in accordance with Section
3.11(d), assumption fees, late payment charges (to the extent not applied to pay
interest on Advances or Additional Trust Fund Expenses as provided in Sections
3.03(d),3.12 and 4.03(d) or otherwise applied pursuant to Section 3.26) and
other transaction fees or other expenses received by the Master Servicer to
which the Special Servicer is entitled pursuant to Section 3.11 upon receipt of
a certificate of a Servicing Officer of the Special Servicer describing the item
and amount. The Collection Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (x) and (xi) of the second preceding paragraph with respect to any Trust
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
one Business Day after receipt of available funds, remit such amounts (net of
any reimbursable expenses incurred by the Special Servicer) to or at the
direction of the Master Servicer for deposit into the Collection Account in
accordance with the second preceding paragraph or any related Loan Combination
Custodial Account pursuant to Section 3.04(h), unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement. Any such amounts
received by the Special Servicer with respect to an REO Property shall be
deposited by the Special Servicer into the related REO Account and remitted to
the Master Servicer for deposit into the Collection Account or any applicable
Loan Combination Custodial Account, as the case may be, pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer and shall deliver promptly, but in no event later than two
Business Days after receipt, any such check to the Master Servicer by overnight
courier, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason.
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(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at the Corporate Trust
Office to be held in trust for the benefit of the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer shall
deliver to the Trustee each month on or before 2:00 p.m. (New York City time) on
the P&I Advance Date therein, for deposit in the Distribution Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount (calculated without regard to clauses (a)(ii),
(a)(v), (b)(ii)(B) and (b)(v) of the definition thereof) for the related
Distribution Date then on deposit in the Collection Account, together with (i)
any Prepayment Premiums and/or Yield Maintenance Charges received on the Trust
Mortgage Loans during the related Collection Period, and (ii) in the case of the
final Distribution Date, any additional amounts contemplated by the second or
third, as applicable, paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a); and
(ii) the aggregate purchase price paid in connection with
the purchase by the Master Servicer of all of the Trust Mortgage Loans and
any REO Properties (net of any portion of such aggregate purchase price to
be paid to any Non-Trust Noteholder(s)) pursuant to Section 9.01,
exclusive of the portion of such amounts required to be deposited in the
Collection Account pursuant to Section 9.01.
If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to the Depository based on
information reported to it by the Master Servicer pursuant to Section 3.12, and
the funds (including, but not limited to, unscheduled payments, late payments,
Principal Prepayments or Balloon Payments) remitted to it by the Master Servicer
differ in amount from what was reported to the Trustee by the Master Servicer,
the Trustee shall use commercially reasonable efforts to cause the Depository to
revise the related distribution and make such revised distribution on a timely
basis on such Distribution Date, but there can be no assurance that the
Depository can do so. The Trustee, the Master Servicer, the Special Servicer and
any Fiscal Agent shall not be liable or held responsible for any resulting delay
(or claims by the Depository resulting therefrom) in the making of such revised
distribution to the Certificateholders. In addition, if the Trustee incurs
out-of-pocket expenses, despite reasonable efforts to avoid and mitigate such
expenses, as a consequence of attempting to revise such distribution to the
Depository, the Trustee shall be entitled to reimbursement from the Trust Fund,
payable from amounts on deposit in the Distribution Account.
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein. The Trustee shall also deposit into the
Distribution Account any amounts required to be deposited by the Trustee
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Distribution Account.
(c) The Trustee shall establish and maintain one or more
accounts (which may be sub-accounts of the Distribution Account) (collectively,
the "Interest Reserve Account"), in trust for the benefit of the
Certificateholders. The Interest Reserve Account shall be an Eligible Account.
On or before each Distribution Date in February and, during each year that is
not a leap year, January, the Trustee shall withdraw from the Distribution
Account and deposit in the Interest Reserve Account, with respect to each
Interest Reserve Loan, an amount equal to the Interest Reserve Amount in respect
of
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such Interest Reserve Loan for such Distribution Date (such withdrawal from the
Distribution Account to be made out of general collections on the Mortgage Pool
including any related P&I Advance that was deposited in the Distribution
Account). The Trustee shall also deposit into the Interest Reserve Account any
amounts required to be deposited by the Trustee pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Interest Reserve Account.
(d) Prior to any Collection Period during which Additional
Interest is received on the Trust Mortgage Loans, and upon notification from the
Master Servicer or Special Servicer pursuant to Section 3.02(d), the Trustee
shall establish and maintain the Additional Interest Account in the name of the
Trustee in trust for the benefit of the Class Z Certificateholders. The
Additional Interest Account shall be established and maintained as an Eligible
Account. Prior to each Distribution Date, the Master Servicer shall remit to the
Trustee for deposit in the Additional Interest Account an amount equal to the
Additional Interest received on the Trust ARD Loans and any successor Trust REO
Loans with respect thereto during the applicable Collection Period. The Trustee
shall also deposit into the Additional Interest Account any amounts required to
be deposited by the Trustee pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the Additional
Interest Account.
Following the distribution of Additional Interest to Class Z
Certificateholders on the first Distribution Date after which there are no
longer any Trust Mortgage Loans outstanding which pursuant to their terms could
pay Additional Interest or any successor Trust REO Loans with respect thereto,
the Trustee shall terminate the Additional Interest Account.
(e) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be an Eligible
Account. The Gain-on-Sale Reserve Account shall be maintained as a segregated
account or a sub-account of the Distribution Account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Trustee and other accounts of the Trustee.
Upon the liquidation of a Trust Specially Serviced Mortgage Loan or
the disposition of any REO Property in accordance with Section 3.09 or Section
3.18, the Special Servicer shall calculate the Gain-on-Sale Proceeds, if any,
realized in connection with such event and remit such funds to the Trustee for
deposit into the Gain-on-Sale Reserve Account. The Trustee shall deposit into
the Gain-on-Sale Reserve Account any amounts required to be deposited by the
Trustee pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Gain-on-Sale Reserve Account.
(f) The Trustee shall establish and maintain the Floating Rate
Account, which shall consist of two sub-accounts. One of those sub-accounts (the
"Class A-3FL Sub-Account") shall be held in trust for the benefit of the Holders
of the Class A-3FL Certificates and the Class A-3FL Swap Counterparty, as their
interests may appear, and the other such sub-account (the "Class AN-FL
Sub-Account") shall be held in trust for the benefit of the Holders of the Class
AN-FL Certificates and the Class AN-FL Swap Counterparty, as their interests may
appear. The Floating Rate Account shall be established and maintained as an
Eligible Account consisting of the two sub-accounts described in the preceding
sentence or, subject to Section 3.04(g), two subaccounts of the Distribution
Account. The Trustee shall make or be deemed to have made deposits in and
withdrawals from the Floating Rate Account in accordance with the terms of this
Agreement. The Trustee shall, as and when required, deposit in the applicable
sub-account of the Floating Rate Account any amounts required to be so deposited
by the Trustee pursuant to Section 3.06 in connection with losses incurred with
respect to
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Permitted Investments of funds held in the Floating Rate Account and, to the
extent permitted by Section 3.06, may withdraw any Net Investment Earnings from
the applicable sub-account of the Floating Rate Account. The Trustee shall
deposit into the applicable sub-account of the Floating Rate Account (i.e., the
Class A-3FL Sub-Account, in the case of clauses (i) and (iii) of this sentence,
and the Class AN-FL Sub-Account, in the case of clauses (ii) and (iv) of this
sentence): (i) all amounts distributable with respect to the Class A-3FL REMIC
II Regular Interest pursuant to Sections 4.01 and 9.01 for each Distribution
Date; (ii) all amounts distributable with respect to the Class AN-FL REMIC II
Regular Interest pursuant to Sections 4.01 and 9.01 for each Distribution Date;
(iii) upon receipt, all amounts received from the Class A-3FL Swap Counterparty
under the Class A-3FL Swap Agreement intended for distribution on the Class
A-3FL Certificates; and (iv) upon receipt, all amounts received from the Class
AN-FL Swap Counterparty under the Class AN-FL Swap Agreement intended for
distribution on the Class AN-FL Certificates.
(g) Notwithstanding that any of the Interest Reserve Account,
the Additional Interest Account, the Gain-on-Sale Reserve Account or each
sub-account comprising the Floating Rate Account may be a sub-account of the
Distribution Account for reasons of administrative convenience, each of the
Interest Reserve Account, the Additional Interest Account, the Gain-on-Sale
Reserve Account, the Floating Rate Account and the Distribution Account shall,
for all purposes of this Agreement (including the obligations and
responsibilities of the Trustee hereunder), be considered to be and shall be
required to be treated as, separate and distinct accounts. The Trustee shall
indemnify and hold harmless the Trust Fund against any losses arising out of the
failure by the Trustee to perform its duties and obligations hereunder as if
such accounts were separate accounts. The provisions of this paragraph shall
survive any resignation or removal of the Trustee and appointment of a successor
trustee.
(h) The Master Servicer shall establish and maintain, or cause
to be established and maintained, one or more separate accounts for each Loan
Combination (collectively, as to each Loan Combination, the related "Loan
Combination Custodial Account") (which may be a sub-account of the Collection
Account), into which, subject to the related Loan Combination Intercreditor
Agreement, the Master Servicer shall deposit or cause to be deposited on a daily
basis (and in no event later than the Business Day following its receipt of
available funds) the following payments and collections received after the
Closing Date:
(i) all payments on account of principal, including
Principal Prepayments, on such Loan Combination;
(ii) all payments on account of interest, including
Penalty Interest, on such Loan Combination;
(iii) all Prepayment Premiums, Yield Maintenance Charges
and late payment charges on such Loan Combination;
(iv) all Insurance Proceeds and Liquidation Proceeds
(other than Gain-on-Sale Proceeds, and, insofar as they relate to the
purchase or other acquisition of the related Trust Mortgage Loan that is
part of such Loan Combination, other than Liquidation Proceeds described
in clauses (iv) - (ix) of the definition of "Liquidation Proceeds", which
amounts shall be required to be deposited in the Collection Account)
received in respect of such Loan Combination and together with any amounts
representing recoveries of Workout-Delayed Reimbursement Amounts or
Nonrecoverable Advances in respect of such Loan Combination, in each case
to the extent not otherwise required to be applied to the restoration of
the Mortgaged Property or released to the related Mortgagor;
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(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in such Loan Combination
Custodial Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred to such Loan
Combination Custodial Account from the related REO Account pursuant to
Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments,
any amounts paid by or on behalf of the related Mortgagor with respect to
such Loan Combination specifically to cover items for which a Servicing
Advance has been made; and
(ix) any amounts representing a reimbursement, payment
and/or contribution due and owing to a party other than the Trust from a
related Non-Trust Noteholder in accordance with the related Loan
Combination Intercreditor Agreement and any amounts representing a cure
payment made by a related Non-Trust Noteholder in accordance with the
related Loan Combination Intercreditor Agreement.
The foregoing requirements for deposit by the Master Servicer in a
Loan Combination Custodial Account shall be exclusive, it being understood and
agreed that actual payments from the Mortgagor(s) in the nature of Escrow
Payments, charges for beneficiary statements or demands, assumption fees,
assumption application fees, modification fees, extension fees, defeasance fees,
earn-out fees, amounts collected for Mortgagor checks returned for insufficient
funds or other amounts that the Master Servicer or the Special Servicer is
entitled to retain as additional servicing compensation pursuant to Section 3.11
need not be deposited by the Master Servicer in a Loan Combination Custodial
Account. If the Master Servicer shall deposit in a Loan Combination Custodial
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Loan Combination Custodial Account. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer with respect to any Loan
Combination, to which the Special Servicer is entitled pursuant to such section,
upon receipt of a written statement of a Servicing Officer of the Special
Servicer describing the item and amount. Each Loan Combination Custodial Account
shall be maintained as a segregated account, separate and apart from trust funds
created for mortgage-backed securities of other series and the other accounts of
the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to a Loan
Combination, the Special Servicer shall promptly, but in no event later than one
Business Day after receipt, remit such amounts to the Master Servicer for
deposit into the related Loan Combination Custodial Account in accordance with
the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to a Loan Combination REO Property shall
initially be deposited by
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the Special Servicer into the related REO Account and thereafter remitted to the
Master Servicer for deposit into the related Loan Combination Custodial Account,
all in accordance with Section 3.16(c).
(i) Notwithstanding that any Loan Combination Custodial Account
may be a sub-account of the Collection Account for reasons of administrative
convenience, each Loan Combination Custodial Account and the Collection Account
shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and each Non-Trust
Noteholder against any losses arising out of the failure by the Master Servicer
to perform its duties and obligations hereunder as if such accounts were
separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Master Servicer and appointment of a successor
master servicer.
(j) Funds in the Collection Account, the Distribution Account,
any Loan Combination Custodial Account, the Gain-on-Sale Reserve Account, the
Interest Reserve Account, the Floating Rate Account and the Additional Interest
Account may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall give written notice to the
Trustee, the Special Servicer and the Rating Agencies of the location of the
Collection Account and any Loan Combination Custodial Account as of the Closing
Date and of the new location of each such account prior to any change thereof.
The Trustee shall give written notice to the Master Servicer, the Special
Servicer and the Rating Agencies of any new location of the Distribution Account
prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account,
the Interest Reserve Account, the Additional
Interest Account, the Floating Rate Account, the
Distribution Account and the Loan Combination
Custodial Accounts.
(a) The Master Servicer may, from time to time, make withdrawals
from the 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 Trustee for deposit in the
Distribution Account the amounts required to be so deposited pursuant to
the first paragraph of Section 3.04(b) and any amount that may be applied
to make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee and
itself, in that order, for xxxxxxxxxxxx X&X Advances in respect of any
Trust Mortgage Loan or Trust REO Loan (exclusive of any Trust Mortgage
Loan that is part of a Loan Combination and any successor Trust REO Loan
with respect thereto), any Fiscal Agent's, the Trustee's and the Master
Servicer's right to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable Advances, which are
reimbursable pursuant to clause (vii) below) being limited to amounts that
represent Late Collections of interest (net of related Master Servicing
Fees) and principal (net of any related Workout Fee or Principal Recovery
Fee) received in respect of the particular Trust Mortgage Loan or Trust
REO Loan (exclusive of any Trust Mortgage Loan that is part of a Loan
Combination or any successor Trust REO Loan with respect thereto) as to
which such P&I Advance was made; provided, however, that if such P&I
Advance becomes a Workout-Delayed Reimbursement Amount, then such P&I
Advance shall thereafter be reimbursed from the portion of general
collections and recoveries on or in respect of the Trust Mortgage Loans
and related REO Properties on deposit in the Collection Account
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from time to time that represent principal to the extent provided in
clause (vii) below (to be allocated between the Loan Groups as set forth
in Section 1.02);
(iii) to pay to itself earned and unpaid Master Servicing
Fees, as allocable between the Master Servicer and such holder (if
different from the Master Servicer), in respect of each Trust Mortgage
Loan and Trust REO Loan (other than a Trust Mortgage Loan that is part of
a Loan Combination and any successor Trust REO Loan with respect thereto),
the Master Servicer's right to payment pursuant to this clause (iii) with
respect to any such Trust Mortgage Loan or Trust REO Loan being limited to
amounts received on or in respect of such Trust Mortgage Loan (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds) or such
Trust REO Loan (whether in the form of REO Revenues, Liquidation Proceeds
or Insurance Proceeds) that are allocable as a recovery of interest
thereon;
(iv) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of each Trust Specially Serviced
Mortgage Loan and Trust REO Loan;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees or Principal
Recovery Fees in respect of each Trust Specially Serviced Mortgage Loan,
Trust Corrected Mortgage Loan and/or Trust REO Loan (in each case other
than a Trust Mortgage Loan that is part of a Loan Combination or any
successor Trust REO Loan with respect thereto), in the amounts and from
the sources contemplated by Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, the
Special Servicer, or itself, in that order (with reimbursements to the
Special Servicer and Master Servicer to be made concurrently on a pro rata
basis), for any unreimbursed Servicing Advances in respect of any Trust
Mortgage Loan, Trust REO Loan or related REO Property (other than a Trust
Mortgage Loan that is part of a Loan Combination or any successor Trust
REO Loan with respect thereto or any related REO Property), any Fiscal
Agent's, the Trustee's, the Special Servicer's and the Master Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited first to payments made by
or on behalf of the related Mortgagor that are allocable to such Servicing
Advance, and then to Liquidation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
provided, however, that if such Servicing Advance becomes a
Workout-Delayed Reimbursement Amount, then such Servicing Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of the Trust Mortgage Loans and related REO
Properties on deposit in the Collection Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (vii) below (to be allocated between the Loan Groups as set forth
in Section 1.02);
(vii) (A) to reimburse any Fiscal Agent, the Trustee, the
Special Servicer or itself, in that order (except that reimbursements to
the Special Servicer and Master Servicer shall be made concurrently on a
pro rata basis), for any unreimbursed Advances that have been or are
determined to be (1) Nonrecoverable Advances with respect to any Trust
Mortgage Loan or any related REO Property first, out of REO Revenues,
Liquidation Proceeds and Insurance Proceeds received on the related Trust
Mortgage Loan, then, out of the principal portion of general collections
on the Mortgage Pool (to be allocated between the Loan Groups as set forth
in Section 1.02), then, to the extent the principal portion of general
collections is insufficient and with respect to such excess only, subject
to any exercise of the sole option to defer
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reimbursement thereof pursuant to Section 4.03(f), out of other
collections on the Trust Mortgage Loans and related REO Properties, and/or
(2) Workout-Delayed Reimbursement Amounts, out of the principal portion of
the general collections on the Mortgage Pool (to be allocated between the
Loan Groups as set forth in Section 1.02), net of such amounts being
reimbursed pursuant to (1) above, together with, in the case of a
Nonrecoverable Advance, interest thereon being paid pursuant to clause
(viii) below, or (B) to pay itself, with respect to any Trust Mortgage
Loan or related REO Property (other than a Trust Mortgage Loan that is
part of a Loan Combination or any successor Trust REO Loan or REO
Property), any related earned Master Servicing Fee that remained unpaid in
accordance with clause (iii) above following a Final Recovery
Determination made with respect to such Trust Mortgage Loan or related REO
Property and the deposit into the Collection Account of all amounts
received in connection therewith;
(viii) at such time as it reimburses any Fiscal Agent, the
Trustee, the Special Servicer or itself, in that order, for any
unreimbursed Advance (excluding any such Advance that constitutes a
Workout-Delayed Reimbursement Amount for which interest was paid under
clause (vii) above) pursuant to clause (ii), (vi) or (vii) above, to pay
any Fiscal Agent, the Trustee, the Special Servicer or itself, as the case
may be, in that order (except that payments to the Special Servicer and
Master Servicer shall be made concurrently on a pro rata basis), any
unpaid interest accrued and payable thereon in accordance with Section
3.03(c), 3.03(d) or 4.03(d), as applicable; the Master Servicer's, the
Special Servicer's, the Trustee's and/or any Fiscal Agent's right to
payment pursuant to this clause (viii) with respect to interest on any
Advance being permitted to be satisfied (A) in the case of interest on an
Advance that has been or is determined to be a Nonrecoverable Advance, out
of the sources out of which the related Advance may be satisfied as
provided in clause (vii) above, as the case may be, and (B) in the case of
interest on an Advance that has not been determined to be a Nonrecoverable
Advance, (1) out of Default Charges collected on or in respect of the
related Trust Mortgage Loan or Trust REO Loan during the Collection Period
in which such Advance is reimbursed (the use of such Default Charges to be
allocated pursuant to Section 3.26), and (2) to the extent that the
Default Charges described in the immediately preceding clause (1) are
insufficient, but only at the same time or after such Advance has been
reimbursed, out of general collections on the Trust Mortgage Loans and any
related REO Properties on deposit in the Collection Account;
(ix) to pay for property inspection costs and expenses
incurred by the Trust Fund as an Additional Trust Fund Expense pursuant to
Section 3.12(a);
(x) (A) to pay itself, as additional servicing
compensation in accordance with Section 3.11(b), (1) interest and
investment income earned in respect of amounts held in the Collection
Account as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the Collection Account for any
Investment Period; and (2) any Prepayment Interest Excesses (after
deduction of the amounts required to be deposited by the Master Servicer
in the Collection Account for the related Distribution Date pursuant to
Section 3.19(a) in connection with Prepayment Interest Shortfalls and
Casualty/Condemnation Interest Shortfalls); and (B) to pay itself and the
Special Servicer, as additional servicing compensation in accordance with
Sections 3.11(b) and 3.11(d), respectively, Default Charges to the extent
provided in clause seventh of Section 3.26(a);
(xi) to pay for the cost of an independent appraiser or
other expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18 or 4.03(c), to the extent such cost is not required to be
advanced hereunder;
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(xii) to pay itself, the Special Servicer, the Depositor,
or any of their respective Affiliates, directors, partners, members,
managers, shareholders, officers, employees or agents, as the case may be,
any amounts payable to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel and other
experts contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii), 3.20(b) and 11.02(a), (C)
the cost of an Opinion of Counsel contemplated by Section 11.01(a),
11.01(b) or 11.01(c) in connection with any amendment to this Agreement
requested by the Master Servicer or the Special Servicer that protects or
is in furtherance of the rights and interests of Certificateholders, and
(D) the cost of recording this Agreement in accordance with Section
11.02(a);
(xiv) to pay itself, the Special Servicer, any of the
Mortgage Loan Sellers, the Plurality Subordinate Certificateholder or any
other Person, as the case may be, with respect to each Trust Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xv) to pay, out of general collections on the Mortgage
Pool on deposit in the Collection Account, to a Non-Trust Noteholder, any
amount (other than normal monthly payments) specifically payable or
reimbursable to such party by the Trust, in its capacity as holder of the
related Trust Mortgage Loan that is a part of the related Loan Combination
or any successor REO Loan with respect thereto, pursuant to the terms of
the related Loan Combination Intercreditor Agreement;
(xvi) to reimburse any Fiscal Agent, the Trustee, the
Master Servicer and/or the Special Servicer, as applicable, for
unreimbursed Advances, unpaid Master Servicing Fees and/or any unpaid
interest on any Advances, but only to the extent that such items relate to
a Trust Mortgage Loan that is part of a Loan Combination or any successor
Trust REO Loan, each such party's respective rights to reimbursement
pursuant to this clause (xvi) being limited to amounts on deposit in the
Collection Account that represent Liquidation Proceeds described in
clauses (iv) through (ix) of the definition thereof; provided that, such
items may only be reimbursed to any party pursuant to this clause (xvi) if
and to the extent that such items have not been or are not simultaneously
being reimbursed to such party pursuant to Section 3.05(e); and provided,
further, that the amount of any unpaid Master Servicing Fees, unreimbursed
Advances and/or unpaid interest on Advances reimbursable to any party
pursuant to this clause (xvi) shall be reduced by any related unpaid
Master Servicing Fees, unreimbursed Advances and unpaid interest on
Advances in respect of the subject Trust Mortgage Loan or Trust REO Loan
which, following the purchase or sale from which the subject Liquidation
Proceeds have been derived, will continue to be payable or reimbursable
under the related Loan Combination Intercreditor Agreement and/or any
successor servicing agreement with respect to the related Loan Combination
to the Master Servicer and/or the Special Servicer (and which amounts
shall no longer be payable hereunder) if the Master Servicer and/or the
Special Servicer has agreed to continue acting as a master servicer or
special servicer, as the case may be, of the related Loan Combination
following the removal of the related Trust Mortgage Loan from the Trust
Fund;
(xvii) to remit to the Trustee for deposit into the
Additional Interest Account the amounts required to be deposited pursuant
to Section 3.04(d);
(xviii) [RESERVED];
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(xix) to pay the cost of any Environmental Assessment (to
the extent not otherwise advanced pursuant to Section 3.09(c)) or any
remedial, corrective or other action pursuant to Section 3.09(c);
(xx) to withdraw any amounts deposited in error;
(xxi) to withdraw any other amounts that this Agreement
expressly provides may be withdrawn from the Collection Account; and
(xxii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Collection Account pursuant to clauses (ii)-(xix) above and
such records shall be sufficient to determine the amounts attributable to REMIC
I.
The Master Servicer shall pay to the Special Servicer, the Trustee
or any Fiscal Agent, on each P&I Advance Date from the Collection Account
amounts permitted to be paid to the Special Servicer, the Trustee or any Fiscal
Agent therefrom based on a certificate of a Servicing Officer of the Special
Servicer or of a Responsible Officer of the Trustee or any Fiscal Agent,
received not later than 1:00 p.m. (New York City time) on the immediately
preceding Determination Date and describing the item and amount to which the
Special Servicer, the Trustee or any Fiscal Agent, as the case may be, is
entitled. The Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Mortgage Loan and REO Property, on a loan-by-loan and property-by-property
basis, for the purpose of substantiating any request for withdrawal from the
Collection Account. With respect to each Mortgage Loan for which it makes an
Advance, the Trustee and any Fiscal Agent shall similarly keep and maintain
separate accounting for each Mortgage Loan, on a loan-by-loan and
property-by-property basis, for the purpose of substantiating any request for
withdrawal from the Collection Account for reimbursements of Advances or
interest thereon.
In connection with any payments required to be made to a Non-Trust
Noteholder in accordance with Section 3.05(a)(xv), the Master Servicer may
request a written statement from such Non-Trust Noteholder, describing the
nature and amount of the item for which such party is seeking payment or
reimbursement and setting forth the provision(s) of the related Loan Combination
Intercreditor Agreement pursuant to which such party believes it is entitled to
reimbursement; provided that the Master Servicer may not condition payments
required to be made to a Non-Trust Noteholder in accordance with Section
3.05(a)(xv) upon receipt of such a written statement (other than as permitted
under the related Loan Combination Intercreditor Agreement); and provided,
further, that to the extent such a written statement from a Non-Trust Noteholder
is received by the Master Servicer, the Master Servicer may conclusively rely,
absent manifest error and consistent with the Servicing Standard, upon such
statement as to the nature and amount of the item for which reimbursement is
sought.
(b) The Trustee may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make deemed distributions to itself as holder of
the REMIC I Regular Interests, and to make distributions to
Certificateholders and the Floating Rate Account, on each Distribution
Date, pursuant to Section 4.01 or 9.01, as applicable;
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(ii) to pay itself or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05;
(iii) to pay itself respective portions of the Trustee Fee
as contemplated by Section 8.05(a) hereof with respect to the Mortgage
Loans;
(iv) to pay for the cost of the Opinions of Counsel
sought by it (A) as provided in clause (iv) of the definition of
"Disqualified Organization", (B) as contemplated by Section 3.20(b),
9.02(a) and 10.01(h), or (C) as contemplated by Section 11.01(a), 11.01(b)
or 11.01(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;
(v) to pay any and all federal, state and local taxes
imposed on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the REMIC Administrator, the
Master Servicer or the Special Servicer is liable therefor pursuant to
Section 10.01(i);
(vi) to pay the REMIC Administrator any amounts
reimbursable to it pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited
by the Master Servicer in the Distribution Account not required to be
deposited therein;
(viii) to withdraw any Interest Reserve Amount and deposit
such Interest Reserve Amount into the Interest Reserve Account pursuant to
Section 3.04(c);
(ix) to pay itself interest and investment income earned
in respect of amounts held in the Distribution Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Distribution Account for any Investment Period; and
(x) to clear and terminate the Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee shall on each Distribution Date to occur in
March of each year, prior to any distributions required to be made to
Certificateholders on such date, withdraw from the Interest Reserve Account and
deposit into the Distribution Account in respect of each Interest Reserve Loan,
an amount equal to the aggregate of the Interest Reserve Amounts deposited into
the Interest Reserve Account pursuant to Section 3.04(c) during February and, if
applicable, January of that year.
(d) The Trustee shall, on any Distribution Date, make
withdrawals from the Additional Interest Account to the extent required to make
the distributions of Additional Interest required by Section 4.01(b).
(e) The Master Servicer may, from time to time, make withdrawals
from each Loan Combination Custodial Account for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make remittances on each P&I Advance Date (or,
with respect to a Non-Trust Noteholder, on such earlier or later date as
provided for in the related Loan Combination Intercreditor Agreement) to
the related Non-Trust Noteholder(s) and to the Trust in
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accordance with the related Loan Combination Intercreditor Agreements,
such remittances to the Trust to be made to the Collection Account;
(ii) to reimburse any Fiscal Agent, the Trustee and
itself, in that order, for xxxxxxxxxxxx X&X Advances made with respect to
the related Trust Mortgage Loan that is part of the related Loan
Combination or any successor Trust REO Loan, any Fiscal Agent's, the
Trustee's and the Master Servicer's right to reimbursement pursuant to
this clause (ii) with respect to any P&I Advance (other than any P&I
Advance that has been or is determined to be a Nonrecoverable Advance,
which shall be reimbursed in the manner contemplated in Section
3.05(a)(vii)) being limited to amounts that represent Late Collections of
interest (net of related Master Servicing Fees) and principal (net of any
related Workout Fee or Principal Recovery Fee) received in respect of the
related Trust Mortgage Loan that is part of the related Loan Combination
or any successor Trust REO Loan; provided, however, that if such P&I
Advance becomes a Workout-Delayed Reimbursement Amount, then such P&I
Advance shall thereafter be reimbursed in the manner contemplated in
Section 3.05(a)(vii);
(iii) to pay to itself earned and unpaid Master Servicing
Fees (as allocable between the Master Servicer and such holder (if
different from the Master Servicer)) in respect of the related Loan
Combination (including, without limitation, any successor REO Loans
comprising such), the Master Servicer's right to payment pursuant to this
clause (iii) with respect to the related Loan Combination (including,
without limitation, any successor REO Loans comprising such) being limited
to amounts received on or in respect of such Mortgage Loans (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds) or such
REO Loans (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iv) [RESERVED];
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Special Servicing Fees,
Workout Fees and/or Principal Recovery Fees in respect of the related Loan
Combination in the amounts provided in Section 3.11(c) and out of the
collections contemplated by the applicable Loan Combination Intercreditor
Agreement;
(vi) to reimburse any Fiscal Agent, the Trustee, the
Special Servicer or itself, in that order (with reimbursements to the
Special Servicer and Master Servicer to be made concurrently on a pro rata
basis), for any unreimbursed Servicing Advances in respect of the related
Loan Combination or any related Loan Combination REO Property, any Fiscal
Agent's, the Trustee's, the Special Servicer's and the Master Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to payments made by or on
behalf of the related Mortgagor and cure payments that are allocable to
such Servicing Advance, or to Liquidation Proceeds, Insurance Proceeds
and, if applicable, REO Revenues received in respect of the related Loan
Combination or any related Loan Combination REO Property; provided,
however, that if such Servicing Advance becomes a Workout-Delayed
Reimbursement Amount, then such Servicing Advance shall thereafter be
reimbursed in the manner contemplated in Section 3.05(a)(vii);
(vii) to reimburse any Fiscal Agent, the Trustee, the
Special Servicer or itself, in that order (except that reimbursements to
the Special Servicer and Master Servicer shall be made concurrently on a
pro rata basis), for any unreimbursed Servicing Advances in respect of
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the related Loan Combination or any related Loan Combination REO Property
that have been or are determined to be Nonrecoverable Advances out of REO
Revenues, Liquidation Proceeds and Insurance Proceeds received on such
Loan Combination or any related Loan Combination REO Property; provided
that if REO Revenues, Liquidation Proceeds and Insurance Proceeds received
on the related Loan Combination or any related Loan Combination REO
Property are insufficient, then such Servicing Advance shall be reimbursed
in the manner contemplated in Section 3.05(a)(vii);
(viii) at such time as it reimburses any Fiscal Agent, the
Trustee, the Special Servicer or itself, in that order, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above, to pay
any Fiscal Agent, the Trustee, the Special Servicer or itself, as the case
may be, in that order (except that payments to the Special Servicer and
Master Servicer shall be made concurrently on a pro rata basis), any
unpaid interest accrued and payable thereon in accordance with Section
3.03(d) or 4.03(d), as applicable; the Master Servicer's, Special
Servicer's, Trustee's and/or Fiscal Agent's right to payment pursuant to
this clause (viii) with respect to interest on any Advance being permitted
to be satisfied (A) out of Default Charges collected on or in respect of
the related Loan Combination, during the Collection Period in which such
Advance is reimbursed (the use of such Default Charges to be allocated
pursuant to Section 3.26), (B) to the extent that the Default Charges
described in the immediately preceding clause (A) are insufficient, but
only at the same time or after such Advance has been reimbursed, out of
general collections on the Loan Combination and any related Loan
Combination REO Property on deposit in such Loan Combination Custodial
Account, and (C) if general collections on the related Loan Combination
and any related Loan Combination REO Property on deposit in such Loan
Combination Custodial Account are insufficient and such Advance has been
or is determined to be a Nonrecoverable Advance, out of the sources out of
which the related Advance may be reimbursed as provided in Section
3.05(a)(vii);
(ix) to pay for property inspection costs and expenses
incurred by the Trust Fund as an Additional Trust Fund Expense pursuant to
Section 3.12(a), to the extent such costs and expenses relate to the
related Loan Combination Mortgaged Property;
(x) (A) to pay itself, as additional servicing
compensation in accordance with Section 3.11(b), (1) interest and
investment income earned in respect of amounts held in such Loan
Combination Custodial Account as provided in Section 3.06(b), but only to
the extent of the Net Investment Earnings with respect to such Loan
Combination Custodial Account for any Investment Period; and (2) any
Prepayment Interest Excess with respect to the Trust Mortgage Loan that is
part of the related Loan Combination (after deduction of the amounts
required to be deposited by the Master Servicer in the Collection Account
for the related Distribution Date pursuant to Section 3.19(a) in
connection with Prepayment Interest Shortfalls and Casualty/Condemnation
Interest Shortfalls); and (B) to pay itself and the Special Servicer, as
additional servicing compensation in accordance with Sections 3.11(b) and
3.11(d), respectively, Default Charges with respect to such Loan
Combination to the extent provided in clause seventh of Section 3.26(a);
(xi) to pay for the cost of an independent appraiser or
other expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18 or 4.03(c), to the extent those costs relate to such Loan
Combination and/or the related Loan Combination Mortgaged Property;
(xii) to pay itself, the Special Servicer, the Depositor,
or any of their respective Affiliates, directors, partners, members,
managers, shareholders, officers, employees
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or agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03, to the extent such amounts relate to such Loan
Combination and/or the related Loan Combination Mortgaged Property;
(xiii) to pay for (A) the advice of counsel and other
experts contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii), 3.20(b) and 11.02(a), and
(C) the cost of recording the related Loan Combination Intercreditor
Agreement and any required opinion of counsel related thereto and, to the
extent applicable pursuant to Section 11.02(a), the allocable portion of
the cost of the Opinion of Counsel contemplated by Section 11.02(a) and,
in the case of each of (A) and (B) preceding, to the extent such amounts
relate to such Loan Combination and/or the related Loan Combination
Mortgaged Property;
(xiv) to pay itself, the Special Servicer, the related
Mortgage Loan Seller, the Plurality Subordinate Certificateholder or any
other Person, as the case may be, with respect to the related Trust
Mortgage Loan in such Loan Combination, if previously purchased by such
Person pursuant to this Agreement, all amounts received thereon subsequent
to the date of purchase;
(xv) [RESERVED];
(xvi) to pay the cost of any Environmental Assessment (to
the extent not otherwise advanced pursuant to Section 3.09(c)) or any
remedial, corrective or other action pursuant to Section 3.09(c), to the
extent such costs relate to such Loan Combination and/or the related Loan
Combination Mortgaged Property;
(xvii) to withdraw any amounts deposited in error;
(xviii) to withdraw any other amounts that this Agreement
expressly provides may be withdrawn from such Loan Combination Custodial
Account; and
(xix) to clear and terminate such Loan Combination
Custodial Account at the termination of this Agreement pursuant to Section
9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from a Loan Combination Custodial Account pursuant to clauses
(ii)-(xviii) above and such records shall be sufficient to determine the amounts
attributable to REMIC I.
The Master Servicer shall, on or before 12:00 p.m. (New York City
time) on each P&I Advance Date (or, if a different date and/or time is provided
under or pursuant to the related Loan Combination Intercreditor Agreement with
respect to remittances to be made to a Non-Trust Noteholder, such other date
and/or time), remit to the Trust and the related Non-Trust Noteholder(s), such
amounts as are distributable in respect of each Mortgage Loan that is part of a
Loan Combination (or any successor REO Loan with respect thereto) pursuant to
the corresponding Loan Combination Intercreditor Agreement, such remittances to
the Trust to be made to the Collection Account and such remittances to the
related Non-Trust Noteholder(s) to be made by wire transfer to the respective
accounts designated by such Non-Trust Noteholder(s) pursuant to the related Loan
Combination Intercreditor Agreements.
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The Master Servicer shall pay to the Special Servicer, the Trustee
or any Fiscal Agent on each P&I Advance Date from any Loan Combination Custodial
Accounts amounts permitted to be paid to the Special Servicer, the Trustee or
any Fiscal Agent therefrom based on a certificate of a Servicing Officer of the
Special Servicer or of a Responsible Officer of the Trustee or any Fiscal Agent
received not later than 1:00 p.m. (New York City time) on the immediately
preceding Determination Date and describing the item and amount to which the
Special Servicer, the Trustee or any Fiscal Agent, as the case may be, is
entitled. The Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Mortgage Loan and REO Property, on a loan-by-loan and property-by-property
basis, for the purpose of substantiating any request for withdrawal from a Loan
Combination Custodial Account. With respect to each Mortgage Loan for which it
makes an Advance, each of the Trustee and any Fiscal Agent shall similarly keep
and maintain separate accounting for each Mortgage Loan, on a loan-by-loan and
property-by-property basis, for the purpose of substantiating any request for
withdrawal from a Loan Combination Custodial Account for reimbursements of
Advances or interest thereon.
If and to the fullest extent that it is permitted to do so pursuant
to the related Loan Combination Intercreditor Agreement, the Master Servicer
shall, consistent with the Servicing Standard, seek payment from the related
B-Note Loan Holder to cover (or to reimburse the Trust for the payment of) any
cost or expense, including the reimbursement of Advances and the payment of
interest thereon, with respect to such Loan Combination or any related REO
Property that is not (but, subject to available funds, would have been permitted
to be) paid out of amounts otherwise payable to such B-Note Loan Holder.
(f) In addition, the Trustee may from time to time, make
withdrawals from the Gain-on-Sale Reserve Account, the Additional Interest
Account and the Interest Reserve Account to pay itself interest and investment
income earned in respect of amounts held in the Gain-on-Sale Reserve Account,
the Additional Interest Account and the Interest Reserve Account, respectively,
as provided in Section 3.06(b), but in each case only to the extent of the Net
Investment Earnings with respect to the Gain-on-Sale Reserve Account, the
Additional Interest Account and the Interest Reserve Account, respectively, for
any Investment Period.
(g) The Trustee may, from time to time, make withdrawals from
the Floating Rate Account for (but only for) the following purposes:
(i) solely to the extent of amounts on deposit in the
Class A-3FL Sub-Account, to make payments to the Class A-3FL Swap
Counterparty pursuant to Section 3.29(d);
(ii) solely to the extent of amounts on deposit in the
Class A-3FL Sub-Account, to make distributions to the Holders of the Class
A-3FL Certificates on each Distribution Date pursuant to Section 4.01(c);
(iii) solely to the extent of amounts on deposit in the
Class AN-FL Sub-Account, to make payments to the Class AN-FL Swap
Counterparty pursuant to Section 3.29(d);
(iv) solely to the extent of amounts on deposit in the
Class AN-FL Sub-Account, to make distributions to the Holders of the Class
AN-FL Certificates on each Distribution Date pursuant to Section 4.01(c);
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(v) to pay itself Net Investment Earnings earned on
funds held in the Floating Rate Account;
(vi) to pay to the Persons entitled thereto any amounts
deposited in the Floating Rate Account in error; and
(vii) to clear and terminate the Floating Rate Account
pursuant to Section 9.01.
It is hereby acknowledged that amounts on deposit in the Class A-3FL
Sub-Account as of any Distribution Date and available for such purposes shall be
applied to make any payments to the Class A-3FL Swap Counterparty pursuant to,
and subject to the limitations and conditions set forth in, Section 3.29(d),
prior to being applied to make distributions to the Holders of the Class A-3FL
Certificates pursuant to Section 4.01(c).
It is hereby acknowledged that amounts on deposit in the Class AN-FL
Sub-Account as of any Distribution Date and available for such purposes shall be
applied to make any payments to the Class AN-FL Swap Counterparty pursuant to,
and subject to the limitations and conditions set forth in, Section 3.29(d),
prior to being applied to make distributions to the Holders of the Class AN-FL
Certificates pursuant to Section 4.01(c).
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Collection Account, the
Distribution Account, the Floating Rate Account,
the Loan Combination Custodial Accounts, the
Additional Interest Account, the Gain-on-Sale
Reserve Account and the REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Collection
Account or a Loan Combination Custodial Account (each, for purposes of this
Section 3.06, an "Investment Account"), the Special Servicer may direct in
writing any depository institution maintaining an REO Account (also, for
purposes of this Section 3.06, an "Investment Account"), and the Trustee may
direct in writing any depository institution maintaining the Distribution
Account, the Floating Rate Account, the Gain-on-Sale Reserve Account, the
Additional Interest Account and the Interest Reserve Account (each also, for
purposes of this Section 3.06, an "Investment Account"), to invest, or if it is
such depository institution, may itself invest, the funds held therein 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 account pursuant to this Agreement. 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). The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the Reserve Accounts, the
Collection Account or the Loan Combination Custodial Accounts) and the Special
Servicer (with respect to Permitted Investments of amounts in the REO Accounts),
on behalf of the Trustee, and the Trustee (with respect to Permitted Investments
of amounts in the Distribution Account, the Floating Rate Account, the
Gain-on-Sale Reserve Account, the Additional Interest Account and the Interest
Reserve Account) shall (and in the case of the Master Servicer and the Special
Servicer, the Trustee hereby designates the Master Servicer and the Special
Servicer, as applicable, as the person that shall) maintain continuous
possession of any Permitted Investment that is either (i) a "certificated
security", as such term is defined in the UCC, or (ii) other property in which a
secured party may perfect its security interest by possession under the UCC or
any other applicable law.
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Possession of any such Permitted Investment by the Master Servicer, the Special
Servicer or the Trustee shall constitute possession by the Trustee, as secured
party, for purposes of Section 9-313 of the UCC and any other applicable law. If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Collection Account, the Loan Combination Custodial Accounts, the Servicing
Accounts and the Reserve Accounts), the Special Servicer (in the case of the REO
Accounts) or the Trustee (in the case of the Distribution Account, the Floating
Rate Account, the Gain-on-Sale Reserve Account, the Additional Interest Account
and the Interest Reserve Account) shall:
(i) 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 equal to
the lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer, the Special Servicer
or the Trustee, as the case may be, that such Permitted Investment would
not constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in any of the Servicing Accounts, the Reserve Accounts, the Collection
Account or the Loan Combination Custodial Accounts, interest and investment
income realized on funds deposited therein, to the extent of the related Net
Investment Earnings, if any, for each Investment Period and, in the case of a
Reserve Account or a Servicing Account, to the extent not otherwise payable to
the related Mortgagor in accordance with applicable law or the related Mortgage
Loan documents, shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to its withdrawal in accordance with Section
3.03(a), 3.03(f) or 3.05(a), as applicable. Whether or not the Special Servicer
directs the investment of funds in any REO Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each Investment Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Distribution Account, the Floating Rate Account, the
Gain-on-Sale Reserve Account, the Additional Interest Account and the Interest
Reserve Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each
Investment Period, shall be for the sole and exclusive benefit of the Trustee
and shall be subject to its withdrawal in accordance with Section 3.05(b) or
3.05(f), as applicable. If any loss shall be incurred in respect of any
Permitted Investment on deposit in any Investment Account, the Master Servicer
(in the case of the Servicing Accounts, the Reserve Accounts, the Collection
Account and the Loan Combination Custodial Accounts, excluding any accounts
containing amounts invested solely for the benefit of, and at the direction of,
the Mortgagor under the terms of the Mortgage Loan or applicable law), the
Special Servicer (in the case of the REO Accounts) and the Trustee (in the case
of the Distribution Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account, the Additional Interest Account and the Interest Reserve Account) shall
promptly deposit therein from its own funds, without right of reimbursement, no
later than the end of the Investment Period during which such loss was incurred,
the amount of the Net Investment Loss, if any, for such Investment Period.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment and the Special Servicer or the Master Servicer fails to
deposit any losses with respect to such Permitted Investment pursuant to Section
3.06(b), the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to not less
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than 25% of the Voting Rights allocated to any Class, shall take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including,
without limitation, the calculation of the Available Distribution Amount, 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) The Master Servicer, with respect to each of the Mortgage
Loans, including Specially Serviced Mortgage Loans, and the Special Servicer,
with respect to REO Properties, shall use reasonable efforts, consistent with
the Servicing Standard, to cause the Mortgagor to maintain, to the extent
required by the terms of the related Mortgage Loan documents, or if the
Mortgagor does not maintain, shall itself maintain for each Mortgaged Property
all insurance coverage as is required under the related Mortgage; provided that
if and to the extent that any such Mortgage permits the holder thereof any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Mortgagor is required to maintain, the Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard and subject to the terms of this Section 3.07; and provided, further
that, if and to the extent that a Mortgage so permits, the related Mortgagor
shall be required to exercise its reasonable efforts to obtain the required
insurance coverage from Qualified Insurers and required insurance coverage
obtained by the Master Servicer shall be from Qualified Insurers. The cost of
any such insurance coverage obtained by either the Master Servicer or the
Special Servicer shall be a Servicing Advance to be paid by the Master Servicer
pursuant to Section 3.03. If not required under the terms of the Mortgage or the
Mortgage Loan documents, the Special Servicer may require that earthquake
insurance be secured for one or more Mortgaged Properties at the expense of the
Trust Fund (including the Special Servicer's costs and expenses incurred in
obtaining such insurance). Subject to Section 3.17(a), the Special Servicer
shall also cause to be maintained for each REO Property no less insurance
coverage than was required of the Mortgagor under the related Mortgage as of the
Closing Date; provided that all such insurance shall be obtained from Qualified
Insurers. All such insurance policies maintained by the Master Servicer or the
Special Servicer (i) shall contain (if they insure against loss to property and
do not relate to an REO Property) a "standard" mortgagee clause, with loss
payable to the Trustee or the Master Servicer on behalf of the Trustee (and, in
the case of a Loan Combination, the related Non-Trust Noteholder(s)) (in the
case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the
name of the Special Servicer (in the case of insurance maintained in respect of
REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without
30 days' prior written notice to the insured party; (iv) shall include coverage
in an amount not less than the lesser of (x) the full replacement cost of the
improvements securing a Mortgaged Property or REO Property, as applicable, or
(y) the outstanding principal balance owing on the related Mortgage Loan or REO
Loan, as applicable, and in any event, the amount necessary to avoid the
operation of any co-insurance provisions; (v) shall include a replacement cost
endorsement providing no deduction for depreciation (unless such endorsement is
not permitted under the related Mortgage Loan documents); (vi) shall include
such other insurance, including, to the extent available at commercially
reasonable rates, earthquake insurance, where applicable, as required under the
applicable Mortgage or other Mortgage Loan documents; (vii) to the extent that
the Mortgage or other Mortgage Loan documents specifically require terrorism
coverage or the Mortgage requires the related Mortgagor to carry "all risk"
coverage, shall include terrorism coverage, unless the failure to obtain such
terrorism coverage constitutes an Acceptable Insurance
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Default; and (viii) in each case such insurance shall be issued by an insurer
authorized under applicable law to issue such insurance. Notwithstanding the
foregoing, the Master Servicer or the Special Servicer shall not be required to
obtain, and shall not be in default hereunder for failing to obtain, any
insurance coverage that was previously required of the Mortgagor under the
related Mortgage if (a) such insurance is not available at any rate; (b) such
insurance is not available from a Qualified Insurer (provided that the Master
Servicer or the Special Servicer, as applicable, shall obtain such insurance
from the next highest rated insurer offering such insurance at commercially
reasonable rates); (c) subject to the prior approval of the Controlling Class
Representative (which approval is deemed granted if not denied within 10
Business Days after its receipt of the Master Servicer's or the Special
Servicer's request for such approval), such insurance is not available at
commercially reasonable rates and, as determined by the Master Servicer or the
Special Servicer following due inquiry conducted in a manner consistent with the
Servicing Standard, the subject hazards are not commonly insured against by
prudent owners of similar real properties in similar locales (but only by
reference to such insurance that has been obtained by such owners at the then
current market rates); or (d) the Trustee does not have an insurable interest in
the related Mortgaged Property or REO Property. Any amounts collected by the
Master Servicer or the 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 Mortgagor, in
each case subject to the rights of any tenants and ground lessors, as the case
may be, and in each case in accordance with the terms of the related Mortgage
and the Servicing Standard) shall be deposited in the Collection Account,
subject to withdrawal pursuant to Section 3.05(a), in the case of amounts
received in respect of a Mortgage Loan (other than a Loan Combination), or in
the related Loan Combination Custodial Account, subject to withdrawal pursuant
to Section 3.05(e), in the case of amounts received in respect of a Loan
Combination, or in the applicable REO Account, subject to withdrawal pursuant to
Section 3.16(c), in the case of amounts received in respect of an REO Property.
Any cost incurred by the Master Servicer or the Special Servicer in maintaining
any such insurance shall not, for purposes hereof, including, without
limitation, calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
Notwithstanding the foregoing, with respect to the Mortgage Loans
which either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Master
Servicer will be required to (A) use reasonable efforts to monitor whether the
insurance policies for the related Mortgaged Property contain Additional
Exclusions, (B) request the Mortgagor to either purchase insurance against the
risks specified in the Additional Exclusions or provide an explanation as to its
reasons for failing to purchase such insurance and (C) notify the Special
Servicer if any insurance policy contains Additional Exclusions or if any
Mortgagor fails to purchase the insurance requested to be purchased by the
Master Servicer pursuant to clause (B) above. If the Special Servicer determines
in accordance with the Servicing Standard that such failure is not an Acceptable
Insurance Default, the Special Servicer shall notify the Master Servicer and the
Master Servicer shall cause such insurance to be maintained. Furthermore, the
Special Servicer shall inform the Rating Agencies as to such conclusions for
those Mortgage Loans that (i) have one of the 10 highest outstanding Stated
Principal Balances of all of the Mortgage Loans then included in the Trust Fund
or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the
Mortgage Loans then included in the Trust Fund (and, if a Loan Combination
satisfies clause (i) and/or clause (ii), the Special Servicer shall also inform
the related Non-Trust Noteholder(s) as to such conclusion). During the period
that the Special Servicer is evaluating the availability of such insurance, the
Master Servicer will not be liable for any loss related to its failure to
require the Mortgagor to
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maintain such insurance and will not be in default of its obligations as a
result of such failure and the Master Servicer will not itself maintain such
insurance or cause such insurance to be maintained.
(b) If the 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 Mortgage Loans
and/or REO Properties that it is required to service and administer, then, to
the extent such policy (i) is obtained from a Qualified Insurer and (ii)
provides protection equivalent to the individual policies otherwise required,
the Master Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on the related Mortgaged Properties and/or REO
Properties. In the event that the Special Servicer causes any REO Property to be
covered by such blanket policy, the incremental cost of such insurance
applicable to such REO Property (other than any minimum or standby premium
payable for such policy whether or not any REO Property is covered thereby)
shall be paid by the Master Servicer as a Servicing Advance pursuant to Section
3.03. Such blanket policy or master force-placed policy may contain a deductible
clause (not in excess of a customary amount), in which case the Master Servicer
or the Special Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property 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 policy, promptly
deposit into the Collection Account (or, in the case of a Loan Combination
Mortgaged Property or any Loan Combination REO Property, into the related Loan
Combination Custodial Account) from its own funds the amount not otherwise
payable under the blanket policy or master force-placed policy because of such
deductible clause to the extent the amount of such deductible exceeds the
deductible permitted under the related Mortgage Loan documents (or if the
related Mortgage Loan documents are silent regarding a permitted deductible, a
deductible for an individual policy that is consistent with the Servicing
Standard). The Master Servicer or the Special Servicer, as appropriate, shall
prepare and present, on behalf of itself, the Trustee and the Certificateholders
(and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)),
claims under any such blanket policy or master force-placed policy in a timely
fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall
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 in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause an Adverse Rating Event (as evidenced in writing
from each Rating Agency). Each of the Master Servicer and the 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 the Master Servicer or the Special
Servicer, as the case may be.
Each of the Master Servicer and the Special Servicer shall 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 in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, 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 would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans, or in such other
form and amount as would not result in an Adverse Rating Event (as evidenced in
writing from each Rating Agency). Each of the
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Master Servicer and the Special 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
the Master Servicer or the Special Servicer, as the case may be. Any such errors
and omissions policy shall provide for 10 days' written notice to the Trustee
prior to cancellation. The Master Servicer and the Special Servicer shall each
cause the Trustee to be an additional loss payee on any policy currently in
place or procured pursuant to the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct parent), are rated at
least "A" or the equivalent by all of the Rating Agencies (or such lower rating
as will not result in an Adverse Rating Event, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this Section 3.07.
(d) Within 90 days of the Closing Date, with respect to each
of the Mortgage Loans identified on Schedule II as being covered by an
environmental insurance policy, the Master Servicer (or the Special Servicer in
the case of a Specially Serviced Mortgage Loan) shall notify the insurer under
such environmental insurance policy and take all other action necessary for the
Trustee, on behalf of the Certificateholders (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), to be an insured (and for the
Master Servicer (or the Special Servicer in the case of a Specially Serviced
Mortgage Loan), on behalf of the Trust Fund (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), to make claims) under such
environmental insurance policy. In the event that the Master Servicer (or the
Special Servicer in the case of a Specially Serviced Mortgage Loan) has actual
knowledge of any event (an "Insured Environmental Event") giving rise to a claim
under any environmental insurance policy in respect of any Mortgage Loan covered
thereby, the Master Servicer (or the Special Servicer in the case of a Specially
Serviced Mortgage Loan) shall, in accordance with the terms of such
environmental insurance policy and the Servicing Standard, timely make a claim
thereunder with the appropriate insurer and shall take such other actions in
accordance with the Servicing Standard which are necessary under such
environmental insurance policy in order to realize the full value thereof for
the benefit of the Certificateholders (and in the case of a Loan Combination,
the related Non-Trust Noteholder(s)). Any legal fees, premiums or other
out-of-pocket costs incurred in connection with any such claim under an
environmental insurance policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance. With respect to each environmental
insurance policy that relates to one or more Mortgage Loans, the Master Servicer
shall review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy to realize the full value
thereof for the benefit of the Certificateholders (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)) in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer (or the Special Servicer in
the case of a Specially Serviced Mortgage Loan) receives notice of any
termination of any environmental insurance policy that relates to one or more
Mortgage Loans, the Master Servicer (or the Special Servicer in the case of a
Specially Serviced Mortgage Loan) shall, within five Business Days after receipt
of such notice, notify the Special Servicer, the Controlling Class
Representative, the Rating Agencies, the Trustee and, in the case of a Loan
Combination, the related Non-Trust Noteholder(s) of such termination in writing.
Upon receipt of such notice, the Master Servicer with respect to non-Specially
Serviced Mortgage Loans, and the Special Servicer with respect to Specially
Serviced Mortgage Loans, shall address such termination in accordance with
Section 3.07(a) in the same manner as it would the termination of any other
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Insurance Policy required under the related Mortgage Loan documents. Any legal
fees, premiums or other out-of-pocket costs incurred in connection with a
resolution of such termination of an environmental insurance policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) The Master Servicer (with respect to Mortgage Loans that
are not Specially Serviced Mortgage Loans) and the Special Servicer (with
respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the
mortgagee of record, shall enforce any "due-on-sale" or "due-on-encumbrance"
clauses and any other restrictions contained in the related Mortgage or other
related loan document on transfers or further encumbrances of the related
Mortgaged Property and on transfers of interests in the related Mortgagor,
unless the Master Servicer or the Special Servicer, as the case may be, has (i)
determined, in its reasonable judgment (exercised in accordance with the
Servicing Standard and which, for the avoidance of doubt, would include a
determination that any required conditions to a transfer have been met), that
waiver of the lender's rights under such clauses or the waiver of such other
restrictions, as applicable, would be in accordance with the Servicing Standard
and (ii) complied with the applicable requirements, if any, of Section 6.11 and
Section 6.12; provided that:
(i) subject to the related Mortgage Loan documents and
applicable law, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, in accordance with any related "due-on-encumbrance" clause under
any Trust Mortgage Loan that is a Significant Mortgage Loan, or if, taking
into account existing debt on the subject Mortgaged Property (including
any related Non-Trust Loan(s)) and the proposed additional debt as if such
total debt were a single mortgage loan, the Loan-to-Value Ratio is equal
to or greater than 85% or the Debt Service Coverage Ratio is equal to or
less than 1.2x, unless it receives prior written confirmation from each
Rating Agency that such action would not result in an Adverse Rating Event
(except that prior written confirmation from Fitch and DBRS shall not be
required unless the Trust Mortgage Loan is a Significant Mortgage Loan);
(ii) if the affected Trust Mortgage Loan is a Significant
Mortgage Loan, then, subject to the related Mortgage Loan documents and
applicable law, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, in accordance with any related "due-on-sale" clause under any
Trust Mortgage Loan until it has received written confirmation from each
Rating Agency that such action would not result in an Adverse Rating
Event; provided that, with respect to a waiver of a due-on-sale provision,
in the event that such Mortgage Loan is not a Significant Mortgage Loan,
and the Mortgage Loan documents contain a requirement for Rating Agency
approval, the Master Servicer or the Special Servicer, subject to Section
6.11 and Section 6.12 may waive such requirement without Rating Agency
approval in accordance with the Servicing Standard;
(iii) subject to the related Mortgage Loan documents and
applicable law, the Master Servicer shall not waive any right it has, or
grant any consent it is otherwise entitled to withhold, in accordance with
any related "due-on-encumbrance" clause under any Trust Mortgage Loan that
is not a Specially Serviced Mortgage Loan until it has delivered to the
Special Servicer its recommendation and analysis of the request, together
with a copy of the materials and information upon which such
recommendation is based, and has received the consent of the Special
Servicer (the giving of which consent shall be subject to the Servicing
Standard and Section 6.11 and Section 6.12, which consent shall be deemed
given if not denied
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in writing within 10 Business Days (or, if the Controlling Class
Representative is entitled to object pursuant to Section 6.11 (or, in the
case of a Loan Combination, the Loan Combination Controlling Party is
entitled to object pursuant to Section 6.12), 15 Business Days, which 15
Business Days shall include the five Business Days specified in the
proviso at the end of the first paragraph of Section 6.11) after receipt
by the Special Servicer of the Master Servicer's written recommendation
and analysis and any additional information reasonably requested by the
Special Servicer or the Controlling Class Representative);
(iv) subject to the related Mortgage Loan documents and
applicable law, the Master Servicer shall not waive any right it has, or
grant any consent it is otherwise entitled to withhold, in accordance with
any related "due-on-sale" clause under any Trust Mortgage Loan that is not
a Specially Serviced Mortgage Loan until it has received the consent of
the Special Servicer (the giving of which consent shall be subject to the
Servicing Standard and Section 6.11 and Section 6.12 (as applicable),
which consent shall be deemed given if not denied in writing within 10
Business Days (or, if the Controlling Class Representative is entitled to
object pursuant to Section 6.11 (or, in the case of a Loan Combination,
the Loan Combination Controlling Party is entitled to object pursuant to
Section 6.12), 15 Business Days, which 15 Business Days shall include the
five Business Days specified in the proviso at the end of the first
paragraph of Section 6.11) of receipt by the Special Servicer of the
Master Servicer's written recommendation and analysis and any additional
information reasonably requested by the Special Servicer or the
Controlling Class Representative);
(v) subject to the related Mortgage Loan documents and
applicable law, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, in accordance with any related "due-on-sale" or
"due-on-encumbrance" clause under any Mortgage Loan, or approve the
assumption of any Mortgage Loan, unless in any such case, all associated
costs and expenses are covered without any expense to the Trust (it being
understood and agreed that, except as expressly provided herein, neither
the Master Servicer nor the Special Servicer shall be obligated to cover
or assume any such costs or expenses); and
(vi) neither the Master Servicer nor the Special Servicer
shall (to the extent that it is within the control thereof to prohibit
such event) consent to the transfer of any Mortgaged Property that secures
a Crossed Loan Group unless (i) all of the Mortgaged Properties securing
such Crossed Loan Group are transferred simultaneously by the respective
Mortgagor or (ii) it obtains the consent of the Controlling Class
Representative, which consent shall be deemed given if not denied in
writing within 10 Business Days (or, if the Controlling Class
Representative is entitled to object pursuant to Section 6.11 (or, in the
case of a Loan Combination, the Loan Combination Controlling Party is
entitled to object pursuant to Section 6.12), 15 Business Days, which 15
Business Days shall include the five Business Days specified in the
proviso at the end of the first paragraph of Section 6.11) of receipt by
the Controlling Class Representative of written notice of such action and
all reasonably requested information related thereto (or, if no
information is requested, within 10 Business Days (or, if applicable, 15
Business Days) of receipt of written notice).
If, in connection with an assumption of any Mortgage Loan, the
applicable Mortgage Loan Seller bears the costs and expenses associated with
such assumption in accordance with the terms of the applicable Mortgage Loan
Purchase Agreement, any costs and expenses subsequently recovered by the Master
Servicer from the related Mortgagor in respect of such assumption shall be
promptly remitted by the Master Servicer to the applicable Mortgage Loan Seller.
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In the case of any Mortgage Loan, the Master Servicer and the
Special Servicer shall each provide the other with all such information as each
may reasonably request in order to perform its duties under this Section.
In connection with any permitted assumption of any Mortgage Loan or
waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the Master
Servicer, with respect to Mortgage Loans that are not Specially Serviced
Mortgage Loans, or the Special Servicer, with respect to Specially Serviced
Mortgage Loans, shall prepare all documents necessary and appropriate for such
purposes and shall coordinate with the related Mortgagor for the due execution
and delivery of such documents.
If the Master Servicer or Special Servicer, as applicable, consents
subsequent to the Closing Date to the incurrence by the principal(s) of a
Mortgagor under a Trust Mortgage Loan of mezzanine financing or the incurrence
by a Mortgagor of subordinate debt and enters into an intercreditor agreement,
such servicer (to the extent it is permitted to do so under the related loan
documents and applicable law and in accordance with the Servicing Standard)
shall require the related mezzanine or subordinate lender to agree to pay a
Principal Recovery Fee in connection with any purchase right that arises upon a
loan default in the event such purchase occurs after the expiration of 60 days
from the date the right to purchase arises under such intercreditor agreement.
The foregoing sentence shall not operate to modify the provisions of the
preceding paragraph of this Section 3.08(a) regarding due-on-sale and
due-on-encumbrance provisions.
Notwithstanding anything in this Section 3.08(a) or any other
provision of this Agreement to the contrary, neither (i) the consent of the
Special Servicer nor (ii) confirmation from the Rating Agencies that the subject
transfers will not result in an Adverse Rating Event will be required in
connection with the tenant-in-common transfers contemplated by Section 13.7(e)
of the loan agreement for the Trust Mortgage Loan (Xxxxxxxx Center) identified
as loan number 15 on the Mortgage Loan Schedule. The Master Servicer shall
deliver written notice of such transfers to the Special Servicer and the Rating
Agencies upon the completion of such transfers.
(b) Notwithstanding any other provisions of this Section 3.08,
the Master Servicer with respect to Mortgage Loans that are not Specially
Serviced Mortgage Loans (without the Special Servicer's consent, but subject to
delivering prior notice to the Special Servicer and the Controlling Class
Representative (and with respect to a Loan Combination, the related Non-Trust
Noteholder(s)) or the Special Servicer with respect to Specially Serviced
Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation
as provided in paragraph (a) above, a Mortgagor's request for consent to subject
the related Mortgaged Property to an easement, right-of-way or other similar
agreement for utilities, access, parking, public improvements or another
purpose, and may consent to subordination of the related Mortgage Loan to such
easement, right-of-way or other similar agreement provided the Master Servicer
or the Special Servicer, as applicable, shall have determined in accordance with
the Servicing Standard that such easement, right-of-way or other similar
agreement shall not materially interfere with the then-current use of the
related Mortgaged Property, the security intended to be provided by such
Mortgage or the related Mortgagor's ability to repay the Mortgage Loan, or
materially and adversely affect the value of such Mortgaged Property, or cause
the Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b)
through 3.09(d), Section 6.11 and Section 6.12, exercise reasonable efforts,
consistent with the Servicing Standard, to
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foreclose upon or exercise any power of sale contained in the related Mortgage,
obtain a deed-in-lieu of foreclosure, or otherwise acquire title to the
corresponding Mortgaged Property by operation of law or otherwise in relation to
such of the Mortgage Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments,
including, without limitation, pursuant to Section 3.20. Subject to the second
paragraph of Section 3.03(c), the Master Servicer shall advance all costs and
expenses (other than costs or expenses that would, if incurred, constitute a
Nonrecoverable Servicing Advance) incurred by the Special Servicer in any such
proceedings, and shall be entitled to reimbursement therefor as provided in
Section 3.05(a) or Section 3.05(e), as applicable. Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on behalf
of the Trust Fund (and, in the case of a Loan Combination Mortgaged Property,
the related Non-Trust Noteholder(s)), 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 Special Servicer in its reasonable
judgment (exercised in accordance with the Servicing Standard) taking into
account, as applicable, among other factors, the period and amount of any
delinquency on the affected Mortgage Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy, the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a) and the results of any appraisal obtained pursuant
to the following sentence, all such bids to be made in a manner consistent with
the Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a Defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may, at the expense of the
Trust Fund (and, in the case of a Loan Combination, at the expense of the
related Non-Trust Noteholder(s)), have an appraisal performed with respect to
such property by an Independent Appraiser or other expert in real estate
matters; which appraisal shall take into account, as applicable, among other
factors, the period and amount of any delinquency on the affected Mortgage Loan,
the occupancy level and physical condition of the related Mortgaged Property or
REO Property, the state of the local economy and the obligation to dispose of
any REO Property within the time period specified in Section 3.16(a), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would
consider.
With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to use commercially reasonable efforts to obtain a
Required Appraisal (or with respect to any Mortgage Loan with an outstanding
principal balance, net of related unreimbursed advances of principal, of less
than $2,000,000, at the Special Servicer's option, an internal valuation
performed by the Special Servicer) within 60 days of a Mortgage Loan becoming a
Required Appraisal Mortgage Loan (unless an appraisal meeting the requirements
of a Required Appraisal was obtained for such Required Appraisal Mortgage Loan
within the prior 12 months and the Special Servicer has no actual knowledge of a
material adverse change in the condition of the related Mortgaged Property in
which case such appraisal may be a letter update of the Required Appraisal) and
thereafter shall obtain a Required Appraisal (or with respect to any Mortgage
Loan with an outstanding principal balance, net of related unreimbursed Advances
of principal, of less than $2,000,000, an internal valuation performed by the
Special Servicer) once every 12 months (or sooner if the Special Servicer has
actual knowledge of a material adverse change in the condition of the related
Mortgaged Property) if such Mortgage Loan remains a Required Appraisal Mortgage
Loan. Following its receipt of such Required Appraisal or letter update or the
completion of its internal valuation, the Special Servicer may, but shall not be
required to, reduce the Appraised Value of the related Mortgaged Property based
on its review of the Required Appraisal (or letter update or internal valuation)
and any other information that the Special Servicer, consistent with the
Servicing Standard, deems appropriate. The Special Servicer shall deliver a copy
of each Required Appraisal (or letter update or internal valuation) to the
Master Servicer, the Controlling
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Class Representative and the Trustee within 10 Business Days of obtaining or
performing such Required Appraisal (or letter update or internal valuation).
Subject to the second paragraph of Section 3.03(c), the Master Servicer shall
advance the cost of such Required Appraisal; provided, however, that such
expense will be subject to reimbursement to the Master Servicer as a Servicing
Advance out of the Collection Account pursuant to Section 3.05(a)(vi) and
3.05(a)(vii) or, in the case of a Loan Combination, out of the related Loan
Combination Custodial Account pursuant to Section 3.05(e)(vi) and 3.05(e)(vii).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Loan Combination Mortgaged Property,
the related Non-Trust Noteholder) under such circumstances, in such manner or
pursuant to such terms as would, in the reasonable judgment of the Special
Servicer (exercised in accordance with the Servicing Standard), (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 Mortgaged
Property that is not treated as "foreclosure property" and that is held by REMIC
I at any given time constitutes not more than a de minimis amount of the assets
of REMIC I, 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
Fund to the imposition of any federal income taxes under the Code. Subject to
the foregoing, however, a Mortgaged Property may be acquired through a single
member limited liability company if the Special Servicer determines that such an
action is appropriate to protect the Trust (and, in the case of a Loan
Combination Mortgaged Property, the related Non-Trust Noteholder(s)) from
potential liability. The Special Servicer shall not acquire any personal
property 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
Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion
of Counsel (the cost of which may be withdrawn from the Collection Account
pursuant to Section 3.05(a)) to the effect that the holding of such
personal property as part of the Trust Fund will not cause the imposition
of a tax on either, REMIC I or REMIC II under the REMIC Provisions or
cause either of, REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trust Fund (and, in the case of a Loan Combination, on behalf of the related
Non-Trust Noteholder(s)), 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 (and, in the case of a Loan Combination
Mortgaged Property, on behalf of the related Non-Trust Noteholder(s)), could, in
the reasonable judgment of the Master Servicer or the Special Servicer, as the
case may be, made 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 (a "potentially responsible party"), unless the Special Servicer
has determined (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee (and, in the case of a Loan Combination Mortgaged
Property, the related Non-Trust Noteholder(s)) that shall specify all of the
bases for such determination), in accordance with the Servicing Standard, and
based on an Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments and
performed within six months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be
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delivered to the Trustee, the Controlling Class Representative, the Master
Servicer and, in the case of a Loan Combination Mortgaged Property, to the
related Non-Trust Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with
applicable environmental laws and regulations or, if not, that it would
(taking into account the coverage provided under any related environmental
insurance policy) maximize the recovery to the Certificateholders (and, in
the case of a Loan Combination Mortgaged Property, on behalf of the
related Non-Trust Noteholder(s)) on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders (and, in the case of a Loan Combination Mortgaged
Property, on behalf of the related Non-Trust Noteholder(s)) to be
performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) 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, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related environmental insurance policy) maximize the
recovery to the Certificateholders (and, in the case of a Loan Combination
Mortgaged Property, on behalf of the related Non-Trust Noteholder(s)) on a
present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders (and, in the case of a
Loan Combination Mortgaged Property, on behalf of the related Non-Trust
Noteholder(s)) to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions with respect to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform such
additional environmental testing as it deems necessary and prudent to determine
whether the conditions described in clauses (i) and (ii) of the preceding
paragraph have been satisfied (the cost of any such additional testing also to
be covered by, and reimbursable as, a Servicing Advance). The cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding paragraph shall be payable out of the Collection
Account or the applicable Loan Combination Custodial Account pursuant to Section
3.05(a) or 3.05(e) (or, in the case of a Loan Combination Mortgaged Property, to
the extent the funds in the related Loan Combination Custodial Account are
insufficient, shall be advanced by the Master Servicer, subject to Section
3.03(c)).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
thereof has not been satisfied with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan and there is no breach of a representation or warranty
requiring repurchase under the applicable Mortgage Loan Purchase Agreement, the
Special Servicer shall take such action as is in accordance with the Servicing
Standard (other than proceeding against the Mortgaged Property). At such time as
it deems appropriate, the Special Servicer may, on behalf of the Trust (and, if
a Loan Combination is involved, the related Non-Trust Noteholder(s)), if and as
applicable, release all or a portion of such Mortgaged Property from the lien of
the related Mortgage;
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provided that, if such Mortgage Loan (or such Loan Combination, if applicable)
has a then outstanding principal balance of 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, (i) the Special Servicer shall have notified the
Rating Agencies, the Trustee, the Controlling Class Representative, the Master
Servicer and, in the case of a Loan Combination Mortgaged Property, the related
Non-Trust Noteholder(s) in writing of its intention to so release all or a
portion of such Mortgaged Property and the bases for such intention and (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property.
(e) The Special Servicer shall report to the Master Servicer,
the Controlling Class Representative, the Trustee and, in the case of a Loan
Combination Mortgaged Property, the related Non-Trust Noteholder(s) monthly in
writing as to any actions taken by the Special Servicer with respect to any
Mortgaged Property that represents security for a Defaulted Mortgage Loan as to
which the environmental testing contemplated in Section 3.09(c) above has
revealed that any of the conditions set forth in clauses (i) and (ii) thereof
has not been satisfied, in each case until the earlier to occur of satisfaction
of all such conditions and release of the lien of the related Mortgage on such
Mortgaged Property.
(f) The 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 deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the Mortgage Loan permit such an action and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
(g) Annually in each January, the Special Servicer shall on a
timely basis forward to the Master Servicer, all information required to be
reported and the Master Servicer shall promptly prepare and file with the
Internal Revenue Service 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 Mortgage Loan or
Mortgaged Property required by Sections 6050H (as applicable), 6050J and 6050P
of the Code. The Master Servicer shall prepare and file the information returns
with respect to the receipt of any mortgage interest received in a trade or
business from individuals with respect to any Mortgage Loan as required by
Section 6050H of the Code. All information returns shall be in form and
substance sufficient to meet the reporting requirements imposed by the relevant
sections of the Code.
(h) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination in respect
of any Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate (together with the
basis and back-up documentation for the determination) delivered to the Trustee,
the Controlling Class Representative, the Master Servicer and, in the case of
any Loan Combination or any Loan Combination REO Property, the related Non-Trust
Noteholder(s) no later than the third Business Day following such Final Recovery
Determination.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property.
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SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Trust Mortgage Loan, or
the receipt by the Master Servicer of a notification that payment in full shall
be escrowed in a manner customary for such purposes, the Master Servicer shall
promptly notify the Trustee in writing, who shall release or cause the related
Custodian to release, by a certification (which certification shall be in the
form of a Request for Release in the form of Exhibit D-1 attached hereto and
shall be accompanied by the form of a release or discharge 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 the
Collection Account pursuant to Section 3.04(a) have been or will be so
deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Collection Account or the Distribution Account.
Upon the payment in full of any Non-Trust Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the related Non-Trust Noteholder in writing by a certification (which
certification shall be in the form of a Request for Release in the form of
Exhibit D-1 attached hereto and shall be accompanied by the form of a release or
discharge 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 the related Loan Combination Custodial Account pursuant to Section
3.04(h) have been or will be so deposited) of a Servicing Officer (a copy of
which certification shall be delivered to the Special Servicer) and shall
request delivery to it of the original Mortgage Note. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Loan Combination Custodial Account, the Collection
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof) (or the
original of the Mortgage Note for a Non-Trust Loan), the Trustee, upon request
of the Master Servicer and receipt from the Master Servicer of a Request for
Release in the form of Exhibit D-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 D-2 attached hereto,
shall release, or cause any related Custodian to release, such Mortgage File (or
portion thereof) (and, in the case of a Non-Trust Loan, the Master Servicer
shall cause the related Non-Trust Noteholder to release the Mortgage Note for
such Mortgage Loan) to the Master Servicer or the Special Servicer, as the case
may be. Upon return of such Mortgage File (or portion thereof) to the Trustee or
related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Special Servicer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Collection Account
or the applicable Loan Combination Custodial Account pursuant to Section 3.04(a)
or Section 3.04(h), as the case may be, have been or will be so deposited, or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee or related Custodian to the Master
Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period
(but no less than three Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer
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notifies the Trustee of an exigency) of the Special Servicer's request therefor,
the Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of a Loan Combination Mortgaged Property,
the related Non-Trust Noteholder(s)) based on a limited power of attorney issued
in favor of the Special Servicer pursuant to Section 3.01(b)), in the form
supplied to the Trustee, any court pleadings, requests for trustee's sale or
other documents stated by the Special Servicer to be reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or REO Property
or to any legal action brought to obtain judgment against any Mortgagor on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or any other
document or agreement that in the Special Servicer's reasonable judgment is
required to be executed in connection with the servicing of any Mortgage Loan or
REO Property, 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 Fund, the Master
Servicer, the Special Servicer or, if applicable, the related Non-Trust
Noteholder. Together with such documents or pleadings, the Special Servicer
shall deliver to the Trustee (and, if applicable, the related Non-Trust
Noteholder(s)) a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee (on behalf of the Certificateholders and, in the
case of a Loan Combination, also on behalf of the related Non-Trust
Noteholder(s)) 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.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the 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
REO Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee
shall accrue at the related Master Servicing Fee Rate and on the same principal
amount respecting which the related interest payment due on such Mortgage Loan
or deemed to be due on such REO Loan is computed and calculated on the same
interest accrual basis as that Mortgage Loan, which will be either a 30/360
Basis, an Actual/360 Basis or an Actual/365 Basis (or, in the event of a
Principal Prepayment in full or other Liquidation Event with respect to a
Mortgage Loan or an REO Loan, on the basis of the actual number of days to
elapse from and including the related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
foregoing sentence notwithstanding, the Master Servicing Fee shall not accrue
with respect to any Closing Date Deposit Mortgage Loan for the interest accrual
period to which the related Closing Date Deposit relates. The Master Servicing
Fee with respect to any Mortgage Loan or any REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly on a loan-by-loan basis, from payments of interest
on each Mortgage Loan and REO Revenues allocable as interest on each REO Loan.
The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in
respect of any Mortgage Loan or any REO Loan out of that portion of related
Insurance Proceeds or Liquidation Proceeds allocable as recoveries of interest,
to the extent permitted by Section 3.05(a)(iii) or Section 3.05(e), as
applicable, and in the case of a Trust Mortgage Loan or a Trust REO Loan, out of
such other amounts as may be permitted by Section 3.05(a). The right to receive
the Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
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(b) Additional master servicing compensation in the form of:
(i) any and all Default Charges (or portion thereof that
is comprised of late payment charges) collected with respect to a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, to the extent
provided in clause seventh of Section 3.26(a);
(ii) 50% of any and all assumption application fees,
assumption fees, modification fees, extension fees, consent fees, release
fees, waiver fees, fees paid in connection with defeasance and earn-out
fees actually paid by a Mortgagor with respect to a Mortgage Loan that is
not a Specially Serviced Mortgage Loan (provided, however, that if the
consent of the Special Servicer is not required pursuant to the terms of
this Agreement in connection with the underlying servicing action, then
the Master Servicer shall be entitled to receive 100% of such fees);
(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 a Mortgagor with respect to a
Mortgage Loan that is not a Specially Serviced Mortgaged Loan and, in the
case of checks returned for insufficient funds, with respect to a
Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses collected
with respect to a Trust Mortgage Loan, including a Specially Serviced
Mortgage Loan (after deduction of the amounts required to be deposited by
the Master Servicer in the Collection Account for the related Distribution
Date pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls and Casualty/Condemnation Interest Shortfalls);
(v) interest or other income earned on deposits in the
Investment Accounts maintained by the Master Servicer (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 Mortgagor under
applicable law or under the related Mortgage Loan documents); and
(vi) other customary charges;
may be retained by the Master Servicer (subject to Section 3.11(e) and are not
required to be deposited in the Collection Account; provided that the Master
Servicer's right to receive Default Charges pursuant to clause (i) above shall
be limited to the portion of such items that have not been applied to pay, or
reimburse the Trust for, interest on Advances, Additional Trust Fund Expenses
and property inspection costs in respect of the related Mortgage Loan or REO
Loan as provided in Sections 3.03(d), 3.12(a) and 4.03(d) or as otherwise
provided in Section 3.26. Any of the amounts described in clauses (i) through
(v) that are collected by the Special Servicer shall be promptly paid to the
Master Servicer.
The Master Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account or, with respect
to a Loan Combination, out of the related Loan Combination Custodial Account,
and the Master Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
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(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue at
the Special Servicing Fee Rate and on the same principal amount respecting which
the related interest payment due on such Specially Serviced Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the same
interest accrual basis as that Mortgage Loan, which will be either a 30/360
Basis, an Actual/360 Basis or an Actual/365 Basis (or, in the event of a
Principal Prepayment in full or other Liquidation Event with respect to a
Mortgage Loan or REO Loan, on the basis of the actual number of days to elapse
from and including the related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue as of the date a Liquidation Event occurs in
respect thereof or it becomes a Corrected Mortgage Loan. Subject to the
penultimate paragraph of Section 3.11(c), earned but unpaid Special Servicing
Fees shall be payable monthly out of related Liquidation Proceeds and then
general collections on the Mortgage Loans and any REO Properties on deposit in
the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to
be payable if a Servicing Transfer Event occurs with respect thereto or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee would become payable if and when such Mortgage Loan again became a Corrected
Mortgage Loan. If the Special Servicer is terminated or resigns, it will retain
the right to receive any and all Workout Fees payable with respect to any
Specially Serviced Mortgage Loan that became a Corrected Mortgage Loan during
the period that it acted as Special Servicer and remained a Corrected Mortgage
Loan at the time of its termination or resignation or if the Special Servicer
resolved the circumstances and/or conditions (including by way of a modification
of the related Mortgage Loan documents) causing the Mortgage Loan to be a
Specially Serviced Mortgage Loan, but the Mortgage Loan had not as of the time
the Special Servicer is terminated or resigns become a Corrected Mortgage Loan
because the related Mortgagor had not made three consecutive monthly debt
service payments and subsequently becomes a Corrected Mortgage Loan as a result
of making such three consecutive payments. The successor Special Servicer will
not be entitled to any portion of those Workout Fees.
In addition, subject to the following sentence, the Special Servicer
shall be entitled to a Principal Recovery Fee with respect to each Specially
Serviced Mortgage Loan (or Qualified Substitute Mortgage Loan substituted in
lieu thereof) for which it obtains a full or discounted payoff from the related
Mortgagor, and the Special Servicer shall also be entitled to the Principal
Recovery Fee with respect to any Specially Serviced Mortgage Loan or REO
Property as to which it receives any Liquidation Proceeds or Insurance Proceeds
and allocable as a recovery of principal, interest (other than Additional
Interest and Penalty Interest) and expenses in accordance with Section 3.02(b)
or the definition of "REO Loan", as applicable; and as to each such Specially
Serviced Mortgage Loan and REO Loan, the Principal Recovery Fee shall be payable
from, and will be calculated by application of the Principal Recovery Fee Rate
to the related payment or proceeds. Notwithstanding the foregoing, no Principal
Recovery Fee shall be payable in connection with, or out of proceeds received in
connection with: the repurchase or substitution of any Mortgage Loan or REO
Property by a Mortgage Loan Seller
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pursuant to the related Mortgage Loan Purchase Agreement due to a Breach or a
Document Defect within (i) the time period (or extension thereof) provided for
such repurchase or substitution or (ii) if such repurchase or substitution
occurs after such time period (or extension thereof) and the Mortgage Loan
Seller was acting in good faith to resolve such Breach or Document Defect; or
the purchase of any Trust Mortgage Loan or related REO Property by the Plurality
Subordinate Certificateholder, the Special Servicer or any Person (except an
assignee meeting the requirements of Section 3.18(c)) pursuant to Section 3.18,
by the related B-Note Loan Holder pursuant to the related Loan Combination
Intercreditor Agreement unless the purchase price with respect thereto includes
the Principal Recovery Fee, or by the Master Servicer, the Special Servicer or
the Plurality Subordinate Certificateholder pursuant to Section 9.01; or the
purchase of any Mortgage Loan by a mezzanine lender pursuant to the related
mezzanine intercreditor agreement unless the purchase price with respect thereto
includes the Principal Recovery Fee; or the removal of any Mortgage Loan or REO
Property from the Trust by the Sole Certificate Owner in connection with an
exchange of all of the outstanding Certificates owned by the Sole Certificate
Owner for all of the Trust Mortgage Loans and each REO Property remaining in the
Trust Fund pursuant to Section 9.01; and further no Principal Recovery Fee
shall, with respect to any Mortgage Loan, be payable (i) in connection with a
Periodic Payment received in connection with such Mortgage Loan or (ii) to the
extent a Workout Fee is payable concerning the related payment, Liquidation
Proceeds or Insurance Proceeds.
Notwithstanding the foregoing, any Special Servicing Fee, Workout
Fee and/or Principal Recovery Fee payable in accordance with the three preceding
paragraphs with respect to a Loan Combination (including, without limitation,
any successor REO Loans comprising same) shall be paid from the collections
received on such Loan Combination on deposit in the related Loan Combination
Custodial Account that may be applied to pay such fees in accordance with the
related Loan Combination Intercreditor Agreement, pursuant to Section 3.05(e).
Insofar as any Special Servicing Fee, Workout Fee and/or Principal Recovery Fee
is payable in respect of a Non-Trust Loan, such fee shall be payable solely from
collections in respect of such Non-Trust Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of: (i) all
Default Charges (or portion thereof that is comprised of late payment charges)
collected with respect to Specially Serviced Mortgage Loans, to the extent
provided in clause seventh of Section 3.26(a), and (subject to Section
3.11(b)(ii)) assumption application fees collected with respect to Specially
Serviced Mortgage Loans and (ii) one-hundred percent (100%) of any assumption
fee or modification fee to the extent actually paid by a Mortgagor with respect
to any Specially Serviced Mortgage Loan and (subject to Section 3.11(b)(ii)) 50%
of all assumption application fees, assumption fees, modification fees,
extension fees, consent fees, release fees, waiver fees, fees paid in connection
with defeasance and earn-out fees actually paid by a Mortgagor with respect to
any non-Specially Serviced Mortgage Loan that is a Mortgage Loan for which
Special Servicer consent is required shall be retained by the Special Servicer
or promptly paid to the Special Servicer by the Master Servicer (subject to
Section 3.11(e)) and shall not be required to be deposited in the Collection
Account or any Loan Combination Custodial Account, as the case may be; provided
that the Special Servicer's right to receive Default Charges pursuant to clause
(i) above shall be limited to the portion of such items that have not been
applied to pay or reimburse the Trust for interest on Advances, Additional Trust
Fund Expenses and property inspection costs in respect of the related Mortgage
Loan as provided in Sections 3.03(d), 3.12(a) and 4.03(d) or as otherwise
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provided in Section 3.26. The Special Servicer shall also be entitled to
additional servicing compensation in the form of: (i) interest or other income
earned on deposits in the REO Accounts, if established, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the REO Accounts for each Collection Period); and (ii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts maintained
by the Special Servicer. The Special Servicer shall be required to pay out of
its own funds all general and administrative expenses incurred by it in
connection with its servicing activities hereunder, and the Special Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
Section 3.05(a) and/or Section 3.05(e) if and to the extent such expenses are
not payable directly out of the Collection Account, the Loan Combination
Custodial Accounts or the REO Accounts, as the case may be.
(e) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property in
respect of a Mortgage Loan, then (notwithstanding anything herein to the
contrary) the Master Servicer or the Special Servicer, as applicable, will apply
that fee to cover the costs and expenses associated with that transfer or
proposed transfer that are not otherwise paid by the related Mortgagor and that
would otherwise be payable or reimbursable out of the Trust Fund, including any
Rating Agency fees and expenses to the extent such fees and expenses are
collectible under applicable law and the Master Servicer or the Special
Servicer, as appropriate, fails to enforce such requirement in accordance with
the related Mortgage Loan documents. Any remaining portion of such assumption
fee or of such assumption application fee will be applied as additional
compensation to the Master Servicer or the Special Servicer in accordance with
this Section 3.11. Neither the Master Servicer nor the Special Servicer shall
waive any assumption fee or assumption application fee, to the extent it would
constitute additional compensation for the other such party, without the consent
of such other party.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed
a physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan becomes a Specially Serviced Mortgage Loan, provided that
such expense shall be reimbursable first out of Default Charges otherwise
payable to the Special Servicer and the Master Servicer, then as an Additional
Trust Fund Expense (other than an expense allocable to a Non-Trust Loan, which
shall be reimbursable from the related Loan Combination Custodial Account). In
addition, after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, the
Special Servicer shall perform or cause to be performed a physical inspection of
the related Mortgaged Property at least once per calendar year, so long as such
Mortgage Loan remains a Specially Serviced Mortgage Loan. Beginning in 2007, the
Master Servicer for each Mortgage Loan other than a Specially Serviced Mortgage
Loan or REO Loan, shall at its expense perform or cause to be performed an
inspection of all the Mortgaged Properties at least once per calendar year
unless such Mortgaged Property has been inspected in such calendar year by the
Special Servicer. The Special Servicer and the Master Servicer shall each
prepare (and, in the case of the Special Servicer, shall deliver to the Master
Servicer) a written report of each such inspection performed by it that sets
forth in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which it is aware, (ii) any change in the condition, occupancy or value of the
Mortgaged Property of which the Master Servicer or the Special Servicer, as
applicable, is aware and considers material, or (iii) any visible waste
committed on the Mortgaged Property of which the Master Servicer or the Special
Servicer, as applicable, is aware and
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considers material. The Master Servicer shall within 45 days of the related
inspection, deliver such reports complete with any photographs taken thereof in
an electronic format to the Trustee (upon request) and to the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)), and the Trustee shall obtain from the Master Servicer and,
subject to Section 3.15, make copies of all such inspection reports available
for review by any requesting Certificateholder and Certificate Owner during
normal business hours at the offices of the Trustee at all times after Trustee's
receipt thereof. Upon written request and at the expense of the requesting
party, the Trustee shall obtain from the Master Servicer and deliver copies of
any such inspection reports to Certificateholders and Certificate Owners. The
Special Servicer shall have the right to inspect or cause to be inspected (at
its own expense) every calendar year any Mortgaged Property related to a loan
that is not a Specially Serviced Mortgage Loan, provided that the Special
Servicer obtains the approval of the Master Servicer prior to such inspection,
and provides a copy of such inspection to the Master Servicer; and provided,
further, that the Master Servicer and the Special Servicer shall not both
inspect a Mortgaged Property that is not securing a Specially Serviced Mortgage
Loan in the same calendar year. If the Special Servicer performs such
inspection, such inspection shall satisfy the Master Servicer's inspection
obligations pursuant to this paragraph (a).
(b) The Special Servicer shall from time to time (and, in any
event, upon request) provide the Master Servicer with such information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
may be necessary for the Master Servicer to prepare each report and any
supplemental information to be provided by the Master Servicer to the Trustee.
Without limiting the generality of the foregoing, not later than 12:00 p.m. (New
York City time) on the Business Day following each Determination Date, beginning
in April 2006, the Special Servicer shall prepare and deliver or cause to be
delivered to the Master Servicer the CMSA Special Servicer Loan File that
contains the information called for in, or that will enable the Master Servicer
to produce, the CMSA files and reports required to be delivered by the Master
Servicer to the Trustee as described below, in each case with respect to all
Specially Serviced Mortgage Loans and the REO Properties.
(c) The Master Servicer shall deliver to the Trustee, no later
than 1:00 p.m. New York City time on the second Business Day prior to each
Distribution Date beginning in April 2006, the CMSA Loan Periodic Update File
with respect to the subject Distribution Date and notice of the Discount Rate
applicable to each Principal Prepayment received in the related Collection
Period. Each CMSA Loan Periodic Update File prepared by the Master Servicer
shall be accompanied by a CMSA Advance Recovery Report. The preparation of each
CMSA Advance Recovery Report shall constitute a responsibility of the Master
Servicer and shall not constitute a responsibility of any other party.
Notwithstanding anything in this Agreement that suggests otherwise, the Master
Servicer shall not be required to deliver a CMSA Advance Recovery Report (and no
CMSA Loan Periodic Update File need be accompanied by any such report) with
respect to any Collection Period for which all of the entries in the report
would be "zero" or "not applicable". The Master Servicer's responsibilities
under this Section 3.12 with respect to information to be provided by the
Special Servicer with respect to Specially Serviced Mortgage Loans and REO
Properties shall be subject to the satisfaction of the Special Servicer's
obligations under Section 3.12(b), but the failure of the Special Servicer to
provide information required by it shall not relieve the Master Servicer of its
duties to provide the related reports, absent such information. Notwithstanding
the foregoing, because the Master Servicer will not receive the Servicing Files
until the Closing Date and will not have sufficient time to review and analyze
such Servicing Files before the initial Distribution Date, the parties agree
that the CMSA Loan Periodic Update File required to be delivered by the Master
Servicer in April 2006 will be based solely upon information generated from
actual collections received by the Master Servicer and from information the
Depositor delivers or causes to be delivered to the Master Servicer (including
but not limited to
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information prepared by third-party servicers of the subject Mortgage Loans with
respect to the period prior to the Closing Date). On or before 4:00 p.m., New
York City time, on each P&I Advance Date beginning in April 2006, the Master
Servicer shall deliver or cause to be delivered to the Trustee the following
reports with respect to the Mortgage Loans (and, if applicable, the related REO
Properties, providing the required information as of the related Determination
Date): (i) a CMSA Comparative Financial Status Report; (ii) a CMSA Delinquent
Loan Status Report; (iii) a CMSA Historical Loan Modification and Corrected
Mortgage Loan Report; (iv) a CMSA Historical Liquidation Report; (v) a CMSA REO
Status Report; (vi) a CMSA Servicer Watch List; (vii) a CMSA Property File;
(viii) a CMSA Loan Setup File; (ix) a CMSA Financial File; (x) a CMSA Loan Level
Reserve/LOC Report; and (xi) a CMSA Advance Recovery Report. Such reports shall
be in CMSA format (as in effect from time to time) and shall be in an electronic
format reasonably acceptable to both the Trustee and the Master Servicer.
(d) The Special Servicer will deliver to the Master Servicer
the reports set forth in Section 3.12(b) and this Section 3.12(d), and the
Master Servicer shall deliver to the Trustee the reports set forth in Section
3.12(c) in an electronic format reasonably acceptable to the Special Servicer,
the Master Servicer and the Trustee. The Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee may, absent
manifest error, conclusively rely on the CMSA Loan Periodic Update File to be
provided by the Master Servicer pursuant to Section 3.12(c). In the case of
information or reports to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12, to the extent that such information or reports
are based on information or reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d) and, to the extent that
such reports are to be prepared and delivered by the Special Servicer pursuant
to Section 3.12(b) and this Section 3.12(d), the Master Servicer shall have no
obligation to provide such information to the Trustee until it has received such
information from the Special Servicer, and the Master Servicer shall not be in
default hereunder due to a delay in providing information required by this
Section 3.12 to the extent caused by the Special Servicer's failure to timely
provide any information or report required under Section 3.12(b) and this
Section 3.12(d) of this Agreement, but the Master Servicer shall not be relieved
of its obligation to timely provide such reports absent the information not
provided by the Special Servicer as required by this Section 3.12.
Commencing with respect to the calendar quarter ended March 31,
2006, the Special Servicer, in the case of any Specially Serviced Mortgage Loan,
and the Master Servicer, in the case of each non-Specially Serviced Mortgage
Loan that is a Mortgage Loan, shall make reasonable efforts to collect promptly
from each related Mortgagor quarterly and annual operating statements, budgets
and rent rolls of the related Mortgaged Property, and quarterly and annual
financial statements of such Mortgagor, whether or not delivery of such items is
required pursuant to the terms of the related Mortgage Loan documents. In
addition, the 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 Special Servicer shall deliver images in suitable electronic
media of all of the foregoing items so collected or obtained by it to the Master
Servicer within 30 days of its receipt thereof. The Master Servicer shall
deliver all items obtained by it, and all items required to be delivered to it
by the Special Servicer pursuant to the immediately preceding sentence to the
Controlling Class Representative (and in the case of a Loan Combination, the
related Non-Trust Noteholder(s), and the Trustee in an imaged format.
The Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Mortgaged Property and REO Property related
to each Mortgage Loan. Within 60 days
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after receipt by the Master Servicer from the related Mortgagor or otherwise, as
to each non-Specially Serviced Mortgage Loan that is a Mortgage Loan and within
30 days after receipt by the Master Servicer from the Special Servicer or
otherwise, as to a Specially Serviced Mortgage Loan or an REO Property, of any
annual operating statements and rent rolls with respect to any Mortgaged
Property or REO Property, the Master Servicer shall, based upon such operating
statements or rent rolls, prepare (or, if previously prepared, update) the CMSA
Operating Statement Analysis Report for the subject Mortgaged Property or REO
Property. The Master Servicer shall remit a copy of each CMSA Operating
Statement Analysis Report prepared or updated by it (promptly following initial
preparation and each update thereof), together with, if not already provided
pursuant to this Section 3.12, the underlying operating statements and rent
rolls, to the Controlling Class Representative (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), the Trustee and the Special
Servicer. Within 60 days (or, in the case of items received from the Special
Servicer or otherwise with respect to Specially Serviced Mortgage Loans and REO
Properties, 30 days) after receipt by the Master Servicer of any quarterly or
annual operating statements with respect to any Mortgaged Property or REO
Property, the Master Servicer shall prepare or update and forward to the
Trustee, the Special Servicer and the Controlling Class Representative (and in
the case of a Loan Combination, the related Non-Trust Noteholder(s)) a CMSA NOI
Adjustment Worksheet using the same format as the CMSA Operating Statement
Analysis Report for such Mortgaged Property or REO Property, together with, if
so requested and not previously provided pursuant to this Section 3.12, the
related quarterly or annual operating statements.
(e) Except with respect to delivery to the Special Servicer or
the Controlling Class Representative, which deliveries shall be made in
electronic format, if the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or 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 such Master Servicer's Internet Website or
the Trustee's Internet Website, unless this Agreement expressly specifies a
particular method of delivery. Notwithstanding the foregoing, the Trustee may
request delivery in paper format of any statement, report or information
required to be delivered to the Trustee.
(f) Notwithstanding any other provision in this Agreement, the
failure of the Master Servicer or Special Servicer to disclose any information
otherwise required to be disclosed by this Section 3.12, or that may otherwise
be disclosed pursuant to Section 3.15 or Section 4.02, shall not constitute a
breach of this Agreement to the extent the Master Servicer or Special Servicer
so fails because such disclosure, in the reasonable belief of the Master
Servicer or Special Servicer, as the case may be, would violate any applicable
law or any provision of a Mortgage Loan document prohibiting disclosure of
information with respect to the Mortgage Loans or Mortgaged Properties or would
constitute a waiver of the attorney-client privilege on behalf of the Trust. The
Master Servicer and Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Mortgage Loan documents and the Servicing
Standard. The Master Servicer or the Special Servicer may affix to any
information provided by it under this Agreement any disclaimer it deems
appropriate in its discretion (without suggesting liability on the part of any
other party hereto).
(g) The Master Servicer shall, contemporaneously with any
related delivery to the Trustee or the Special Servicer, as applicable, provide
any reports that contain information regarding a
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Loan Combination Mortgaged Property or financial information regarding the
related Mortgagor to the related Non-Trust Noteholder(s).
(h) For the purposes of the production by the Master Servicer
or the Special Servicer of any such report that is required to state information
with respect to any Mortgage Loan for any period prior to the related Due Date
in April 2006, the Master Servicer or the Special Servicer, as the case may be,
may conclusively rely (without independent verification), absent manifest error,
on information provided to it by the related Mortgage Loan Seller, by the
related Mortgagor or (x) in the case of such a report produced by the Master
Servicer, by the Special Servicer (if other than such Master Servicer or an
Affiliate thereof) and (y) in the case of such a report produced by the Special
Servicer, by the Master Servicer (if other than such Special Servicer or an
Affiliate thereof). Absent manifest error of which it has actual knowledge,
neither the Master Servicer nor the Special Servicer shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor or
third party that is included in any reports, statements, materials or
information prepared or provided by the Master Servicer or the Special Servicer,
as the case may be. The Trustee shall not be responsible for the accuracy or
completeness of any information supplied to it for delivery pursuant to this
Section. Neither the Trustee, the Master Servicer nor the Special Servicer shall
have any obligation to verify the accuracy or completeness of any information
provided by a Mortgagor or third party. All reports provided pursuant this
Section 3.12 shall be in an electronic format reasonably acceptable to both the
Trustee and the Master Servicer.
(i) The preparation and maintenance by the Master Servicer and
the Special Servicer of all the reports specified in this Section 3.12 with
respect to a Loan Combination, the corresponding Mortgaged Property and/or any
related REO Property, including the calculations made therein, shall be done in
accordance with CMSA standards, to the extent applicable thereto.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Trustee, the Master Servicer and the Special Servicer
shall itself deliver (or, in the case of the Trustee, make available), and shall
cause each Additional Item 1123 Servicer retained or engaged by it to deliver,
on or before May 1 of each year, beginning in 2007 (provided that if the Trustee
requires the following statement in connection with any filing with the
Commission, each of the Trustee, the Master Servicer and the Special Servicer
shall deliver, and shall cause each Additional Item 1123 Servicer retained or
engaged by it to deliver, on or before March 15 of the subject year), to the
Trustee, the Depositor, the Controlling Class Representative, each Non-Trust
Noteholder, and each Rating Agency and, in the case of the Special Servicer or
an Additional Item 1123 Servicer, to the Master Servicer, a statement of
compliance (the "Annual Statement of Compliance") from the Trustee, the Master
Servicer, the Special Servicer or such Additional Item 1123 Servicer, as the
case may be, signed by an authorized officer thereof, to the effect that: (i) a
review of the activities of the Trustee, the Master Servicer, the Special
Servicer or such Additional Item 1123 Servicer, as the case may be, during the
preceding calendar year (or, if applicable, the portion of such year during
which the Certificates were outstanding) and of its performance under this
Agreement (or, in the case of an Additional Item 1123 Servicer, under the
applicable Sub-Servicing Agreement or primary servicing agreement) has been made
under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on such review, the Trustee, the Master Servicer, the Special
Servicer or such Additional Item 1123 Servicer, as the case may be, has
fulfilled all of its obligations under this Agreement (or, in the case of an
Additional Item 1123 Servicer, under the applicable Sub-Servicing Agreement or
primary servicing agreement) in all material respects throughout such year (or,
if applicable, the portion of such year during which the Certificates were
outstanding) 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.
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In the event that the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall use its reasonable efforts to
cause any Additional Item 1123 Servicer that resigns or is terminated under any
applicable servicing agreement to provide, an annual statement of compliance
pursuant to this Section 3.13 with respect to the period of time that the Master
Servicer, the Special Servicer or the Trustee was subject to this Agreement or
the period of time that the Additional Item 1123 Servicer was subject to such
other servicing agreement.
In the event the Trustee or the Depositor does not receive the
Annual Statement of Compliance with respect to any party hereto or, if the
Trustee has been notified of the existence thereof, any Additional Item 1123
Servicer contemplated to deliver such report pursuant to the preceding
paragraph, by March 15th of any year during which a Form 10-K Annual Report is
required to be filed with the Commission with respect to the Trust, then the
Trustee shall, and the Depositor may, forward a Servicer Notice to such Person
(or, in the case of an Additional Item 1123 Servicer known to the Trustee or the
Depositor, as the case may be, to the party hereto that retained or engaged such
Additional Item 1123 Servicer), with a copy of such Servicer Notice to the
Depositor (if the Trustee is sending the Servicer Notice) or the Trustee (if the
Depositor is sending the Servicer Notice), as applicable, within two (2)
Business Days of such failure. Any party hereto that retains or engages a
Servicing Representative that is, at the time of appointment, or subsequently
becomes an Additional Item 1123 Servicer shall so notify the Trustee (unless
such party is the Trustee) and the Depositor in writing promptly following such
party's becoming aware that such Servicing Representative is or has become an
Additional Item 1123 Servicer; and, further, if such Servicing Representative
does not deliver an Annual Statement of Compliance with respect to itself by
March 15th of any year during which a Form 10-K Annual Report is required to be
filed with the Commission with respect to the Trust, the party hereto that
retained or engaged such Servicing Representative shall so notify the Trustee
(unless such party is the Trustee) and the Depositor in writing no later than
the second Business Day following such March 15th, together with an explanation
regarding such failure.
SECTION 3.14. Reports on Assessment of Compliance with Servicing
Criteria; Registered Public Accounting Firm
Attestation Reports.
Each Servicing Function Participant shall itself deliver (or, in the
case of the Trustee, make available), and each party hereto shall cause any
Sub-Servicing Function Participant retained or engaged by it to deliver, on or
before May 1 of each year, beginning in 2007 (provided that if the Trustee
requires the following reports in connection with any filing with the
Commission, each Servicing Function Participant shall deliver (or, in the case
of the Trustee, make available), and each party hereto shall cause any
Sub-Servicing Function Participant retained or engaged by it to deliver, on or
before March 15 of the subject year), at its own expense, to the Trustee, the
Depositor, the Controlling Class Representative, each Non-Trust Noteholder, and
each Rating Agency the following reports: (i) as required under Rule 13a-18 or
Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB, a report on an
assessment of compliance by it with the Servicing Criteria (an "Annual
Assessment Report"), signed by an authorized officer of such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be,
which report shall contain (A) a statement by such Servicing Function
Participant or such Sub-Servicing Function Participant, as the case may be, of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such Servicing Function Participant or such
Sub-Servicing Function Participant, as the case may be, used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
Servicing Function Participant's or such Sub-Servicing Function Participant's,
as the case may be, assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending December 31st of the
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preceding calendar year, which discussion must include any material instance of
noncompliance with the Relevant Servicing Criteria identified by such Servicing
Function Participant or such Sub-Servicing Function Participant, as the case may
be, and (D) a statement that a registered public accounting firm has issued an
attestation report on such Servicing Function Participant's or such
Sub-Servicing Function Participant's, as the case may be, assessment of
compliance with the Relevant Servicing Criteria as of and for such period ending
December 31st of the preceding calendar year; and (ii) as to each report
delivered by a Servicing Function Participant or a Sub-Servicing Function
Participant pursuant to the immediately preceding clause (i), a report from a
registered public accounting firm (made in accordance with the standards for
attestation engagements issued or adopted by the PCAOB) (an "Annual Attestation
Report") that attests to, and reports on, the assessment made by the asserting
party in such report delivered pursuant to the immediately preceding clause (i),
together with (if required to be filed with the Commission) a consent from such
registered public accounting firm authorizing the filing of the subject Annual
Attestation Report with the Commission (an "Accountant's Consent"). Each Annual
Attestation Report must be available for general use and may not contain
restricted use language. Promptly after receipt of each such report delivered
pursuant to the second preceding sentence, the Depositor shall review such
report and, if applicable, shall be entitled to consult with the appropriate
party hereto as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by such party or any Sub-Servicing Function
Participant retained or engaged by it.
In the event that any Servicing Function Participant is terminated
or resigns pursuant to the terms of this Agreement, such party shall provide,
and each such party hereto shall cause any Sub-Servicing Function Participant
engaged by it to provide, an Annual Assessment Report pursuant to this Section
3.14, coupled with an Annual Attestation Report pursuant to this Section with
respect to the period of time that the Servicing Function Participant was
subject to this Agreement or the period of time that the Sub-Servicing Function
Participant was subject to such other servicing agreement.
In the event the Trustee or the Depositor does not receive the
Annual Assessment Report and/or the Annual Attestation Report with respect to
any Servicing Function Participant, or with respect to any Sub-Servicing
Function Participant retained or engaged by a party hereto that is known to the
Trustee or the Depositor, as the case may be, by March 15th of any year during
which a Form 10-K Annual Report is required to be filed with the Commission with
respect to the Trust, then the Trustee shall, and the Depositor may, forward a
Servicer Notice to such Servicing Function Participant or the party hereto that
retained or engaged such Sub-Servicing Function Participant, as the case may be,
with a copy of such Servicer Notice to the Depositor (if the Trustee is sending
the Servicer Notice) or the Trustee (if the Depositor is sending the Servicer
Notice), as applicable, within two (2) Business Days of such failure. For the
purposes of this Section 3.14, as well as Section 3.13 and Section 7.01(V)(B) of
this Agreement, a "Servicer Notice" shall constitute either any writing
forwarded to such party or, in the case of the Master Servicer and the Special
Servicer, notwithstanding the provisions of Section 11.05, e-mail or fax notice
which, in the case of email transmission, shall be forwarded to all of the
following e-mail addresses: xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx,
xxxxx.xxxxxxxxx@xxxxxxxx.xxx and xxxx.xxxxxxxx@xxxxxxxx.xxx,, or such other
e-mail addresses as are provided in writing by the Master Servicer or the
Special Servicer to the Trustee and the Depositor; provided that any party to
this Agreement (or someone acting on their behalf) shall only be required to
forward any such notice to be delivered to the Master Servicer to no more than
three e-mail addresses in the aggregate in order to fulfill its notification
requirement as set forth in the preceding sentence and/or under the provisions
of Section 7.01(V )(B ); and provided, further, that a copy of any Servicer
Notice to the Special Servicer shall be forwarded by the means provided in
Section 11.05. Any party hereto that retains or engages a Servicing
Representative that is, at the time of appointment, or subsequently becomes a
Sub-Servicing Function Participant shall so notify the Trustee (unless such
party is the Trustee) and the Depositor in
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writing promptly following such party's becoming aware that such Servicing
Representative is or has become a Sub-Servicing Function Participant; and,
further, if such Servicing Representative does not deliver or cause the delivery
of an Annual Assessment Report, an Annual Attestation Report and/or, if required
to be filed with the Commission, an Accountant's Consent with respect to itself
by March 15th of any year during which a Form 10-K Annual Report is required to
be filed with the Commission with respect to the Trust, the party hereto that
retained or engaged such Servicing Representative shall promptly so notify the
Trustee (unless such party is the Trustee) and the Depositor in writing no later
than the second Business Day following such March 15th, together with an
explanation of such failure.
The Master Servicer, the Special Servicer and the Trustee, in each
case, to the extent applicable, will reasonably cooperate with the Depositor in
conforming any reports delivered pursuant to this Section 3.14 to requirements
imposed by the Commission on the Depositor in connection with the Depositor's
reporting requirements in respect of the Trust pursuant to the Exchange Act,
provided that the Master Servicer, the Special Servicer and the Trustee shall
each be entitled to charge the Depositor for any reasonable additional costs and
expenses incurred by it in affording the Depositor such cooperation.
SECTION 3.15. Access to Certain Information.
(a) Upon 10 days' prior written notice, the Master Servicer
(with respect to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i)
below, to the extent such items are in its possession), the Special Servicer
(with respect to the items in clauses (d), (e), (f), (g), (h) and (i) below, to
the extent those items are in its possession) and the Trustee (with respect to
the items in clauses (a) through (i) below, to the extent those items are in its
possession) shall make available at their respective offices primarily
responsible for administration of the Mortgage Loans (or in the case of the
Trustee, at its Corporate Trust Office), during normal business hours, or send
to the requesting party, such party having been certified to the Master
Servicer, the Special Servicer or the Trustee, as applicable, in accordance with
(a) and (b) in the following paragraph, as appropriate, at the expense of such
requesting party (unless otherwise provided in this Agreement), for review by
any Certificate Owner or Certificateholder or any prospective transferee of any
Certificate or interest therein, the Trustee, the Rating Agencies, the
Underwriters and the Depositor originals or copies of the following items: (a)
this Agreement and any amendments thereto, (b) all Distribution Date Statements
delivered to holders of the relevant Class of Certificates since the Closing
Date and all reports, statements and analyses delivered by the Master Servicer
since the Closing Date pursuant to Section 3.12(c), (c) all Officer's
Certificates delivered by the Master Servicer or the Special Servicer since the
Closing Date pursuant to Section 3.13, (d) all accountants' reports delivered to
the Master Servicer in respect of itself or the Special Servicer since the
Closing Date as described in Section 3.14, (e) the most recent property
inspection report prepared by or on behalf of the Master Servicer in respect of
each Mortgaged Property and any Environmental Assessments prepared pursuant to
Section 3.09, (f) the most recent Mortgaged Property annual operating statements
and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
and the Asset Status Report prepared by the Special Servicer pursuant to Section
3.21(c), (h) the Servicing File relating to each Mortgage Loan, and (i) any and
all Officer's Certificates and other evidence delivered by the Master Servicer
or the Special Servicer, as the case may be, to support its determination that
any Advance was, or if made, would be, a Nonrecoverable Advance including
appraisals affixed thereto and any Required Appraisal prepared pursuant to
Section 3.09(a). Copies of any and all of the foregoing items will be available
from the Master Servicer, the Special Servicer or the Trustee, as the case may
be, upon request and payment of reasonable copying costs but shall be provided
to any of the Rating Agencies and the Controlling Class Representative (and with
respect to a Loan Combination, the related
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Non-Trust Noteholder(s)) at no cost pursuant to their reasonable requests. The
Master Servicer, Special Servicer and Trustee may each satisfy its obligations
under this Section 3.15(a) by making such items available for review on its
Internet Website with the use of a password.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), in connection with providing
access to or copies of any items in accordance with this Agreement, the Trustee,
the Master Servicer or the Special Servicer, as applicable, shall require: (a)
in the case of Certificate Owners, Certificateholders and the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)), a confirmation executed by the requesting Person substantially
in the form of Exhibit I-1 hereto (or such other form as may be reasonably
acceptable to the Trustee, the Master Servicer or the Special Servicer, as
applicable, and which may provide indemnification for the Master Servicer, the
Special Servicer and the Trustee) generally to the effect that such Person is a
beneficial holder of Book-Entry Certificates, or a representative of a
beneficial holder of Book-Entry Certificates, and, subject to the last sentence
of this paragraph, will keep such information confidential (except that any such
Certificate Owner, any such Certificateholder and the Controlling Class
Representative (and in the case of a Loan Combination, the related Non-Trust
Noteholder(s)) may provide such information 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 I-2 hereto (or such other form as may be reasonably acceptable to the
Trustee, the Master Servicer or the Special Servicer, as applicable, and which
may provide indemnification for the Master Servicer or Trustee, as applicable)
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.
The Certificate Owners and Holders of the Certificates, by their acceptance
thereof, and the Controlling Class Representative (and in the case of a Loan
Combination, the related Non-Trust Noteholder(s)), by its acceptance of its
appointment, will be deemed to have agreed, subject to the last sentence of this
paragraph, to keep such information confidential (except that any Holder may
provide such information obtained by it 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 agrees
not to use such information in any manner that would violate federal, state or
local securities laws. Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner shall be
obligated to keep confidential any information received from the Trustee or the
Master Servicer, as applicable, pursuant to this Section 3.15 that has
previously been made available on an unrestricted basis and without a password
via the Trustee's or the Master Servicer's, as applicable, Internet Website or
has previously been filed with the Commission, and the Trustee or the Master
Servicer, as applicable, shall not require either of the certifications
contemplated by the second preceding sentence in connection with providing any
information pursuant to this Section 3.15 that has previously been made
available without a password via the Trustee's or the Master Servicer's, as
applicable, Internet Website or has previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access
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to any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may but is not
required to, make available each month to any interested party on their
respective Internet Websites (i) the Distribution Date Statement and (ii) this
Agreement, the Prospectus and the Prospectus Supplement. In addition, on each
Distribution Date, the Trustee shall make available to any interested party via
the Trustee's Internet Website the Unrestricted Servicer Reports, the CMSA Loan
Periodic Update File, the CMSA Loan Setup File, the CMSA Bond Level File and the
CMSA Collateral Summary File, in each case for such Distribution Date, and any
other information at the request of the Depositor. The Trustee shall make
available on each Distribution Date (i) the Restricted Servicer Reports and (ii)
the CMSA Property File to any Privileged Person via the Trustee's Internet
Website with the use of a password (or other comparable restricted access
mechanism) provided by the Trustee.
The Master Servicer may, but is not required to, make available each
month via its Internet Website to any Privileged Person, with the use of a
password provided by the Master Servicer, the reports and files comprising the
CMSA Investor Reporting Package.
(c) In connection with providing access to the Trustee's
Internet Website or the Master Servicer's Internet Website, the Trustee or the
Master Servicer, as applicable, may require registration and the acceptance of a
disclaimer and may otherwise adopt reasonable rules and procedures that may
include, to the extent the Master Servicer or Trustee, as applicable, deems
necessary or appropriate, conditioning access on the execution and delivery of
an agreement (which may be in the form of Exhibit I-1 or I-2 (or such other form
as may be reasonably acceptable to the Trustee or the Master Servicer, as
applicable)) governing the availability, use and disclosure of such information
and providing indemnification to the Master Servicer or Trustee, as applicable,
for any liability or damage that may arise therefrom.
The Master Servicer and Trustee may, in accordance with such
reasonable rules and procedures as each may adopt (including conditioning access
on the execution and delivery of an agreement (which may be in the form of
Exhibit I-1 or I-2 (or such other form as may be reasonably acceptable to the
Trustee or the Master Servicer, as applicable)) governing the availability, use
and disclosure of information and providing indemnification to the Master
Servicer or Trustee, as applicable, for any liability or damage that may arise
therefrom), also make available, through its Internet Website or otherwise, any
additional information relating to the Mortgage Loans, the Mortgaged Properties
or the Mortgagors for review by any Persons to whom the Master Servicer or
Trustee, as applicable, believes such disclosure is appropriate, in each case
except to the extent doing so is prohibited by applicable law or by the related
Mortgage Loan (in the case of Trustee, if it has actual knowledge of such
prohibition by the related Mortgage Loan).
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Notwithstanding anything in this Agreement to the contrary, the
Master Servicer and the Trustee may withhold (other than with respect to items
required to be delivered under this Agreement to the Controlling Class
Representative (and, in the case of a Loan Combination, the related Non-Trust
Noteholder(s)) any information not yet included in a Form 8-K Current Report
filed with the Commission or otherwise made publicly available with respect to
which the Trustee or the Master Servicer has determined that such withholding is
appropriate.
Any transmittal of information by the Master Servicers or the
Trustee to any Person other than the Rating Agencies or the Depositor may be
accompanied by a letter containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities
laws restrict any person who possesses material,
non-public information regarding the Trust that issued
ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1, from
purchasing or selling such Certificates in circumstances
where the other party to the transaction is not also in
possession of such information. You also acknowledge and
agree that such information is being provided to you for
the purposes of, and such information may be used only in
connection with, evaluation by you or another
Certificateholder or prospective purchaser of such
Certificates or beneficial interest therein".
(d) If three or more Holders or the Controlling Class
Representative (hereinafter referred to as "Applicants" with a single Person
which (together with its Affiliates) is the Holder of more than one Class of
Certificates being viewed as a single Applicant for these purposes) apply in
writing to the Trustee, and such application states that the Applicants' desire
to communicate with other Holders with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, send, at the
Applicants' expense, the written communication proffered by the Applicants to
all Certificateholders at their addresses as they appear in the Certificate
Register.
(e) The Master Servicer and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from the
Master Servicer or the Special Servicer under this Agreement. None of the Master
Servicer, the Special Servicer or the Trustee shall be liable for the
dissemination of information in accordance with the terms of this Agreement. The
Trustee makes no representations or warranties as to the accuracy or
completeness of any report, document or other information made available on the
Trustee's Internet Website and assumes no responsibility therefor. In addition,
the Trustee, the Master Servicer and the Special Servicer may disclaim
responsibility for any information distributed by the Trustee, the Master
Servicer or the Special Servicer, respectively, for which it is not the original
source.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged 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 Loan Combination Mortgaged
Property, on behalf of the related Non-Trust Noteholder(s). If, pursuant to
Section 3.09(b), the Special Servicer formed or caused to be formed, at the
expense of the Trust, a single
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member limited liability company (of which the Trust is the sole member) for the
purpose of taking title to one or more REO Properties pursuant to this
Agreement, then (subject to the interests of, if affected, the related Non-Trust
Noteholder(s)), the deed or certificate of sale with respect to any such REO
Property shall be issued to such single member limited liability company. The
limited liability company shall be a manager-managed limited liability company,
with the Special Servicer to serve as the initial manager to manage the property
of the limited liability company, including any applicable 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 Special Servicer, on behalf of the Trust Fund and, in the case
of any Loan Combination REO Property, the related Non-Trust Noteholder(s), shall
sell any REO Property as soon as practicable in accordance with the Servicing
Standard, but prior to the end of the third year following the calendar year in
which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies for, more
than 60 days prior to the end of such third succeeding year, and is granted an
extension of time (an "REO Extension") by the Internal Revenue Service to sell
such REO Property or (ii) obtains for the Trustee an Opinion of Counsel,
addressed to the Trustee, the Special Servicer and the Master Servicer, to the
effect that the holding by REMIC I of such REO Property subsequent to the end of
such third succeeding year will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) on either of
REMIC I or REMIC II or cause either of REMIC I or REMIC II to fail to qualify as
a REMIC at any time that any Certificates are outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject REO Property within such extended period as is permitted by
such REO Extension or such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its obtaining the REO
Extension contemplated by clause (i) of the second preceding sentence or its
obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, or for the creation of and the operating of a single member
limited liability company, shall be covered as, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property (other than a Loan Combination Mortgaged
Property), the Special Servicer shall establish and maintain one or more
accounts (collectively, the "Pool REO Account"), to be held on behalf of the
Trustee in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property (other than any Loan
Combination REO Property). If such REO Acquisition occurs with respect to a Loan
Combination Mortgaged Property, then the Special Servicer shall establish an REO
Account solely with respect to such property (an "Loan Combination REO
Account"), to be held for the benefit of the Certificateholders and the related
Non-Trust Noteholder. The Pool REO Account and each Loan Combination REO Account
shall each be an Eligible Account. The Special Servicer shall deposit, or cause
to be deposited, in the applicable REO Account all REO Revenues, Insurance
Proceeds and Liquidation Proceeds received in respect of any REO Property within
2 Business Days of receipt. Funds in the REO Accounts may be invested in
Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from each REO Account to pay itself, as
additional special servicing compensation in accordance with Section 3.11(d),
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 with respect to such REO Account for any Collection Period).
The Special Servicer shall give written notice to the Trustee and the Master
Servicer of the
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location of each REO Account, and shall give notice to the related Non-Trust
Noteholder(s) of the location of any Loan Combination REO Account, in each case
when first established and of the new location of any such REO Account prior to
any change thereof.
(c) The Special Servicer shall withdraw from the related REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any REO Property, but only to the extent of
amounts on deposit in such REO Account relating to such REO Property (including
any monthly reserve or escrow amounts necessary to accumulate sufficient funds
for taxes, insurance and anticipated capital expenditures (the "Impound
Reserve")). On each Determination Date, the Special Servicer shall withdraw from
the Pool REO Account and deposit into the Collection Account, or deliver to the
Master Servicer or such other Person as may be designated by the Master Servicer
(which shall deposit such amounts into the Collection Account) the aggregate of
all amounts received in respect of the related REO Property during the
Collection Period ending on such Determination Date, net of any withdrawals made
out of such amounts pursuant to the preceding sentence. On each Determination
Date, the Special Servicer shall withdraw from each Loan Combination REO Account
and deposit into the related Loan Combination Custodial Account, or deliver to
the Master Servicer or such other Person as may be designated by the Master
Servicer (which shall deposit such amounts into the related Loan Combination
Custodial Account) the aggregate of all amounts then on deposit therein that
were received in respect of the related Loan Combination REO Property during the
Collection Period ending on such Determination Date, net of any withdrawals made
out of such amounts pursuant to the second preceding sentence. Notwithstanding
the foregoing, in addition to the Impound Reserve, the Special Servicer may
retain in the applicable REO Account such portion of proceeds and collections in
respect of any REO Property as may be necessary to maintain a reserve of
sufficient funds for the proper operation, management, leasing, maintenance and
disposition of such REO Property (including, without limitation, the creation of
a reasonable reserve for repairs, replacements, necessary capital improvements
and other related expenses), such reserve not to exceed an amount reasonably
estimated to be sufficient to cover such items estimated to be incurred during
the following twelve-month period.
(d) The 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, each REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to each REO Account as is reasonably requested by the Master
Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged
Property, the 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 Fund. If the 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 or would be subject
to the tax imposed on "prohibited transactions" under Section 860F of the
Code (either such tax referred to herein as an "REO Tax"), then such
Mortgaged Property may be Directly Operated by the Special Servicer as REO
Property;
(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
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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 the Special Servicer may (provided that in the reasonable
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), such alternative is commercially reasonable) acquire
such Mortgaged Property as REO Property and so lease or 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 that no commercially reasonable means exists to operate such property
as REO Property without the Trust Fund incurring or possibly incurring an
REO Tax on income from such property, the Special Servicer shall deliver
to the REMIC Administrator, in writing, a proposed plan (the "Proposed
Plan") to manage such property as REO Property. Such plan shall include
potential sources of income, and, to the extent reasonably possible,
estimates of the amount of income from each such source. Within a
reasonable period of time after receipt of such plan, the REMIC
Administrator shall consult with the Special Servicer and shall advise the
Special Servicer of the REMIC Administrator's federal income tax reporting
position with respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. In addition, the REMIC Administrator
shall (to the extent reasonably possible) advise the Special Servicer of
the estimated amount of taxes that the Trust Fund 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 REMIC
Administrator, the Special Servicer shall either (A) implement the
Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property) or (B) manage such property in a manner that would not result in
the imposition of an REO Tax on the income derived from such property. All
of the REMIC Administrator's expenses (including any fees and expenses of
counsel or other experts reasonably retained by it) incurred pursuant to
this Section shall be reimbursed to it from the Trust Fund in accordance
with Section 10.01(e).
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and, further,
based on the reasonable judgment of the Special Servicer as to which means would
be in the best interest of the Certificateholders (and, in the case of any Loan
Combination REO Property, the related Non-Trust Noteholder(s)) by maximizing (to
the extent commercially reasonable and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers operating acquired mortgaged property comparable
to the respective Mortgaged Property. Both the Special Servicer and the REMIC
Administrator may, at the expense of the Trust Fund payable pursuant to Section
3.05(a)(xiii) consult with counsel.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (and, in the case of any Loan Combination REO
Property, the related Non-Trust Noteholder(s)) solely for the purpose of its
prompt disposition and sale in a manner that does not and will not: (i) cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code; or (ii) except as contemplated by Section 3.17(a), either result in the
receipt by any REMIC of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event
or an Adverse Grantor Trust Event. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the related REO Account, to the extent
of amounts on
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deposit therein with respect to any REO Property, funds necessary for the proper
operation, management, maintenance and disposition of such REO Property,
including without limitation:
(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 costs and expenses necessary to maintain, lease,
sell, protect, manage and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any REO Property are insufficient for the purposes set forth in
the preceding sentence with respect to such REO Property, the Master Servicer,
subject to Section 3.03(c), shall make Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced by an Officer's Certificate
delivered to the Trustee) the Master Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
provided, however, that the Master Servicer may 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) Without limiting the generality of the foregoing, the
Special Servicer shall not, with respect to any REO Property:
(i) enter into, renew or extend any New Lease with
respect to such REO Property, if the New Lease, by its terms would 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 such REO
Property, other than 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 became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other
than an Independent Contractor, to Directly Operate such REO Property on
any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time
that it is held by REMIC I, in which case the Special Servicer may take such
actions as are specified in such Opinion of Counsel.
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(d) Unless Section 3.17(a)(i) applies, the Special Servicer
shall contract with any Independent Contractor for the operation and management
of any 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 Fund) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay out of related REO
Revenues all costs and expenses incurred in connection with the operation
and management of such REO Property, including, without limitation, those
listed in Section 3.17(b) above, and (B) except to the extent that such
revenues are derived from any services rendered by the Independent
Contractor to tenants of such REO Property that are not customarily
furnished or rendered in connection with the rental of real property
(within the meaning of Section 1.856-4(b)(5) of the Treasury regulations
or any successor provision), remit all related revenues collected (net of
its fees and such costs and expenses) to the Special Servicer upon
receipt;
(iv) none of the provisions of this Section 3.17(d)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer of
any of its duties and obligations hereunder with respect to the operation
and management of such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations under Section 3.16 and this Section 3.17 for indemnification of the
Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
SECTION 3.18. Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Trust Mortgage Loan
or an REO Property related thereto only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Section 2.03(a), Section 9.01 and/or any related co-lender,
intercreditor or similar agreement to which the Trust is a party.
(b) After a Trust Mortgage Loan becomes a Trust Defaulted
Mortgage Loan, the Special Servicer shall determine the fair value of the Trust
Mortgage Loan in accordance with the Servicing Standard; provided, however, that
such determination shall be made without taking into account any effect the
restrictions on the sale of such Trust Mortgage Loan contained herein may have
on the value of such Trust Defaulted Mortgage Loan; provided, further, that the
Special Servicer shall
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use reasonable efforts promptly to obtain an Appraisal with respect to the
related Mortgaged Property unless it has an Appraisal that is less than 12
months old and has no actual knowledge of, or notice of, any event which in the
Special Servicer's judgment would materially affect the validity of such
Appraisal. The Special Servicer shall make its fair value determination as soon
as reasonably practicable (but in any event within 30 days) after its receipt of
such new Appraisal, if applicable. The Special Servicer will be permitted, from
time to time, to adjust its fair value determination based upon changed
circumstances, new information and other relevant factors, in each instance in
accordance with the Servicing Standard; provided, however, that the Special
Servicer shall update its fair value determination at least once every 90 days;
and provided, further, that absent the Special Servicer having actual knowledge
of a material change in circumstances affecting the value of the related
Mortgaged Property, the Special Servicer shall not be obligated to update such
determination. The Special Servicer shall notify the Trustee, the Master
Servicer, each Rating Agency, the Plurality Subordinate Certificateholder and
the Controlling Class Representative promptly upon its fair value determination
and any adjustment thereto. The Special Servicer shall also deliver to the
Master Servicer, the Plurality Subordinate Certificateholder and the Controlling
Class Representative, the most recent Appraisal of the related Mortgaged
Property then in the Special Servicer's possession, together with such other
third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Trust Mortgage Loan (such
materials are, collectively, the "Determination Information"). Notwithstanding
the foregoing, the Special Servicer shall not be required to deliver the
Determination Information to the Master Servicer, and shall instead deliver the
Determination Information to the Trustee, if the Master Servicer will not be
determining whether the Option Price represents fair value for the Trust
Defaulted Mortgage Loan, pursuant to this Section 3.18.
In determining the fair value of any Trust Defaulted Mortgage Loan,
the Special Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Trust Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Trust Defaulted Mortgage Loan to the Purchase
Option holder. In addition, the Special Servicer shall refer to all other
relevant information obtained by it or otherwise contained in the related
Mortgage File; provided that the Special Servicer shall take account of any
change in circumstances regarding the related Mortgaged Property known to the
Special Servicer that has occurred subsequent to, and that would, in the Special
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in the most recent related Appraisal. Furthermore,
the Special Servicer shall consider all available objective third-party
information obtained from generally available sources, as well as information
obtained from vendors providing real estate services to the 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.
(c) Subject to the terms set forth in Section 2.03, in the event
a Trust Mortgage Loan becomes a Trust Defaulted Mortgage Loan, each of the
Plurality Subordinate Certificateholder and the Special Servicer (each, together
with their respective assignees, an "Option Holder") shall have an assignable
option (a "Purchase Option") (with respect to any Trust Mortgage Loan that is
part of a Loan Combination, subject to the related Loan Combination
Intercreditor Agreement and Section 3.18(o)) to purchase such Trust Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to (i)
the Purchase Price, if the Special Servicer has not yet determined the fair
value of the Trust Defaulted Mortgage Loan, or (ii) the fair value of the Trust
Defaulted Mortgage Loan as determined by
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the Special Servicer in the manner described in Section 3.18(b) and in
accordance with the Servicing Standard, if the Special Servicer has made such
fair value determination; provided that, if (A) the Purchase Option is being
exercised by an Option Holder that is an assignee of the Special Servicer or the
Plurality Subordinate Certificateholder that is not an Affiliate of the Special
Servicer or the Plurality Subordinate Certificateholder, (B) the assignment of
the Purchase Option was to such Option Holder for no material consideration, and
(C) the Purchase Option is exercised by such Option Holder more than 90 days
following a determination of the fair value of the subject Trust Defaulted
Mortgage Loan, the Option Price shall include a Principal Recovery Fee payable
to the Special Servicer. The Special Servicer shall, promptly after a Trust
Mortgage Loan becomes a Trust Defaulted Mortgage Loan, deliver to the Plurality
Subordinate Certificateholder and the Controlling Class Representative a notice
substantially in the form of Exhibit M-1. Any holder of a Purchase Option may
sell, transfer, assign or otherwise convey its Purchase Option with respect to
any Trust Defaulted Mortgage Loan to any party at any time after the related
Trust Mortgage Loan becomes a Trust Defaulted Mortgage Loan. The transferor of
any Purchase Option shall notify the Trustee and the Master Servicer of such
transfer and such notice shall include (i) in the case of the Plurality
Subordinate Certificateholder, an assignment substantially in the form of
Exhibit M-3, or (ii) in the case of the Special Servicer, an assignment
substantially in the form of Exhibit M-2. Notwithstanding the foregoing, the
Plurality Subordinate Certificateholder (or its assignee) shall have the right
to exercise its Purchase Option prior to any exercise of the Purchase Option by
the Special Servicer; provided, however, if the Purchase Option is not exercised
by the Plurality Subordinate Certificateholder or any assignee thereof within 60
days of the fair value determination being made with respect to the subject
Trust Defaulted Mortgage Loan, then the Special Servicer (or its assignee) shall
have the right to exercise its Purchase Option prior to any exercise by the
Plurality Subordinate Certificateholder and the Special Servicer or its assignee
may exercise such Purchase Option at any time during the 15 day period
immediately following the expiration of such 60-day period. Following the
expiration of such 15 day period, the Plurality Subordinate Certificateholder
(or its assignee) shall again have the right to exercise its Purchase Option
prior to any exercise of the Purchase Option by the Special Servicer. If not
exercised earlier, the Purchase Option with respect to any Trust Defaulted
Mortgage Loan will automatically terminate (i) once the related Trust Defaulted
Mortgage Loan is no longer a Trust Defaulted Mortgage Loan; provided, however,
that if such Trust Mortgage Loan subsequently becomes a Trust Defaulted Mortgage
Loan, the related Purchase Option shall again be exercisable, (ii) upon the
acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed in lieu of foreclosure or (iii)
the modification or pay-off, in full or at a discount, of such Trust Defaulted
Mortgage Loan in connection with a workout. In addition, the Purchase Option
with respect to a Trust Defaulted Mortgage Loan held by any Person will
terminate upon the exercise of the Purchase Option and consummation of the
purchase by any other holder of a Purchase Option.
(d) [RESERVED]
(e) Upon receipt of notice from the Special Servicer indicating
that a Trust Mortgage Loan has become a Trust Defaulted Mortgage Loan, the
holder (whether the original grantee of such option or any subsequent
transferee) of the Purchase Option may exercise the Purchase Option by providing
the Master Servicer, the Trustee and the Controlling Class Representative,
written notice thereof (the "Purchase Option Notice"), which notice shall
identify the Person that, on its own or through an Affiliate, will acquire the
related Trust Mortgage Loan upon closing and shall specify a cash exercise price
at least equal to the Option Price. The Purchase Option Notice shall be
delivered in the manner specified in Section 11.05. The exercise of any Purchase
Option pursuant to this clause (e) shall be irrevocable; provided that the
assignor of the Purchase Option shall have no liability to the Trust Fund or any
other party hereto for the failure of its third party assignee to close the sale
of the Trust
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Defaulted Mortgage Loan after its exercise of the Purchase Option and upon such
failure, the Purchase Option shall revert to the Option Holder as provided
herein as if the Purchase Option had not been exercised, and the Special
Servicer shall pursue against such assignee whatever remedies it may have
against the assignee.
(f) If the Special Servicer or the Plurality Subordinate
Certificateholder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Trust
Mortgage Loan, and the Option Price is based upon the Special Servicer's fair
value determination, then the Master Servicer (or, if the Master Servicer and
the Special Servicer are the same Person, the Trustee) shall determine whether
the Special Servicer's determination of the Option Price represents fair value
for the Trust Defaulted Mortgage Loan, in the manner set forth in Section
3.18(b). In such event, the Special Servicer shall promptly deliver to the
Master Servicer (or the Trustee, if the Trustee is making the determination as
contemplated in the preceding sentence) the Determination Information, including
information regarding any change in circumstance regarding the Trust Defaulted
Mortgage Loan known to the Special Servicer that has occurred subsequent to, and
that would materially affect the value of the related Mortgaged Property
reflected in, the most recent related Appraisal. Notwithstanding the foregoing,
and if the Special Servicer has not already done so, the Master Servicer (or the
Trustee, if the Trustee is making the determination as contemplated in the
preceding sentences) may (at its option) designate an Independent Appraiser or
other Independent expert of recognized standing having experience in evaluating
the value of defaulted mortgage loans, selected with reasonable care by the
Master Servicer or the Trustee, as the case may be, to confirm that the Special
Servicer's determination of the Option Price represents fair value for the Trust
Defaulted Mortgage Loan (which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such an
Independent Appraiser or third party deems any such Determination Information to
be defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate). In that
event, the Master Servicer or the Trustee, as the case may be, absent manifest
error, may conclusively rely on the opinion of any such Person.
The costs of all appraisals, inspection reports and opinions of
value incurred by the Special Servicer, the Master Servicer, the Trustee or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer (or the Trustee, if applicable) and shall constitute, and be
reimbursable as, Servicing Advances. In addition, the Master Servicer (or, if
applicable, the Trustee) shall be entitled to receive out of the Collection
Account a fee in the amount of $2,500, for the initial confirmation of the
Special Servicer's Option Price determination (but no fee for any subsequent
confirmation) that is made by it with respect to any Trust Defaulted Mortgage
Loan, in accordance with this Section 3.18(f).
Notwithstanding anything contained in this Section 3.18(f) to the
contrary, if the Special Servicer, the Plurality Subordinate Certificateholder
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Trust Mortgage Loan, and
the Option Price is based upon the Special Servicer's fair value determination,
and the Master Servicer and the Special Servicer are Affiliates, the Trustee
shall determine whether the Option Price represents fair value for the Trust
Defaulted Mortgage Loan, in the manner set forth in Section 3.18(b) and as soon
as reasonably practicable but in any event within 30 days (except as such period
may be extended as set forth in this paragraph) of its receipt of the Purchase
Option Notice and Determination Information from the Special Servicer. In
determining whether the Option Price represents the fair value of such Trust
Defaulted Mortgage Loan, the Trustee may obtain an opinion as to the fair value
of such Trust Defaulted Mortgage Loan, taking into account the factors set forth
in Section 3.18(b), from an Independent Appraiser or other Independent expert of
recognized standing having experience in evaluating the value
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of defaulted mortgage loans which opinion shall be based on a review, analysis
and evaluation of the Determination Information, and to the extent such an
Independent Appraiser or third party deems any such Determination Information to
be defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person which was chosen by the Trustee with reasonable care. Notwithstanding the
30 day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Trust Defaulted Mortgage Loan, such
party shall provide its determination, together will all information and reports
it relied upon in making such determination, to the Special Servicer, the Master
Servicer or the Trustee, as the case may be, and the Special Servicer shall then
adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(e) above. Upon
receipt of such notice, such Option Holder shall have three (3) Business Days to
(i) accept the Option Price as adjusted and proceed in accordance with Section
3.18(g) below, or (ii) reject the Option Price as adjusted, in which case such
Option Holder shall not be obligated to close the purchase of the Trust
Defaulted Mortgage Loan. Upon notice from such Option Holder, that it rejects
the Option Price as adjusted, the Special Servicer and the Trustee shall provide
the notices described in Section 3.18(h) below and thereafter any Option Holder
may exercise its purchase option in accordance with this Section 3.18, at the
Option Price as adjusted.
(g) The Option Holder whose Purchase Option is declared
effective pursuant to Section 3.18(e) above shall be required to pay the
purchase price specified in its Purchase Option Notice to the Master Servicer
within 10 Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective. Upon receipt
of a Request for Release from the Master Servicer specifying the date for
closing the purchase of the related Trust Defaulted Mortgage Loan, and the
purchase price to be paid therefor, the Trustee shall deliver at such closing
for release to or at the direction of such Option Holder, the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it by such Option Holder
and are reasonably necessary to vest in the purchaser or any designee thereof
the ownership of such Trust Mortgage Loan. In connection with any such purchase
by any Person other than it, the Special Servicer shall deliver the related
Mortgage File to or at the direction of the purchaser. In any case, the Master
Servicer shall deposit the purchase price (except that portion of any purchase
price constituting Gain-on-Sale Proceeds which shall be deposited in the
Gain-on-Sale Reserve Account) into the Collection Account within one (1)
Business Day following receipt.
(h) The Special Servicer shall immediately notify the Trustee
and the Master Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option Notice
pursuant to this Section 3.18(h). Thereafter, the Trustee shall notify each
Option Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18.
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(i) Unless and until the Purchase Option with respect to a
Trust Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies available hereunder with respect to such Trust
Defaulted Mortgage Loan, including, without limitation, workout and foreclosure,
as the Special Servicer may deem appropriate consistent with the Servicing
Standard; provided, however, the Special Servicer will not be permitted to sell
the Trust Defaulted Mortgage Loan other than in connection with the exercise of
the related Purchase Option.
(j) In the event that title to any REO Property is acquired by
the Trust in respect of any Trust Defaulted Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Controlling Class
Representative, shall use its reasonable best efforts to sell any REO Property
as soon as practicable in accordance with Section 3.16(a). If the Special
Servicer on behalf of the Trustee has not received an REO Extension or an
Opinion of Counsel described in Section 3.16(a) and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an REO
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Controlling Class Representative, before the end of such
period or extended period, as the case may be, auction the REO Property to the
highest bidder (which may be the Special Servicer) in accordance with the
Servicing Standard. The Special Servicer shall give the Controlling Class
Representative, the Master Servicer and the Trustee (and, in the case of a Loan
Combination Mortgaged Property, the related Non-Trust Noteholder(s)) not less
than five days' prior written notice of its intention to sell any REO Property,
and in respect of such sale, the Special Servicer shall offer such REO Property
in a commercially reasonable manner. Where any Interested Person is among those
bidding with respect to an REO Property, the Special Servicer shall require that
all bids be submitted in writing and be accompanied by a refundable deposit of
cash in an amount equal to 5% of the bid amount. No Interested Person shall be
permitted to purchase the REO Property at a price less than the Purchase Price;
and provided, further, that if the Special Servicer intends to bid on any REO
Property, (i) the Special Servicer shall notify the Trustee of such intent, (ii)
the Trustee shall promptly obtain, at the expense of the Trust Fund, an
Appraisal of such REO Property and (iii) the Special Servicer shall not bid less
than the greater of (A) the fair market value set forth in such Appraisal or (B)
the Purchase Price.
(k) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property or the
exercise of a Purchase Option, including the collection of all amounts payable
in connection therewith. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property or purchase any Trust Defaulted Mortgage
Loan. Any sale of a Trust Defaulted Mortgage Loan (pursuant to a Purchase
Option) or an REO Property shall be without recourse to, or representation or
warranty by, the Trustee, any Fiscal Agent, the Depositor, the Special Servicer,
the Master Servicer, any Mortgage Loan Seller or the Trust. None of the Special
Servicer, the Master Servicer, the Depositor, the Trustee or any Fiscal Agent
shall have any liability to the Trust or any Certificateholder with respect to
the price at which a Trust Defaulted Mortgage Loan is sold if the sale is
consummated in accordance with the terms of this Agreement.
(l) Upon exercise of a Purchase Option, the holder of such
Purchase Option shall be required to pay the purchase price specified in its
Purchase Option Notice to the Special Servicer within 10 Business Days of
exercising its Purchase Option. The proceeds of any sale of a Trust Defaulted
Mortgage Loan, after deduction of the expenses of such sale incurred in
connection therewith, shall be deposited by the Special Servicer in the
Collection Account.
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(m) Notwithstanding anything herein to the contrary, the
Special Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative that would cause it to
violate applicable law or any term or provision of this Agreement, including the
REMIC Provisions and the Servicing Standard.
(n) The amount paid for a Trust Defaulted Mortgage Loan or
related REO Property purchased under this Agreement shall be deposited into the
Collection Account. Upon receipt of an Officer's Certificate from the Master
Servicer to the effect that such deposit has been made, the Trustee 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 in the purchaser of such Trust Defaulted Mortgage Loan or related REO
Property ownership of the Trust Defaulted Mortgage Loan or REO Property. The
Custodian, upon receipt of a Request for Release, shall release or cause to be
released to the Master Servicer or Special Servicer the related Mortgage File.
In connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the purchaser of a Trust Defaulted Mortgage Loan or
related REO Property.
(o) Pursuant to the terms of each Loan Combination Intercreditor
Agreement, upon the occurrence of one or more specified events set forth in each
such agreement with respect to the related Trust Mortgage Loan, each related
Non-Trust Noteholder may, at its option and subject to the terms of such
agreement, purchase the subject Trust Mortgage Loan at the purchase price set
forth in such agreement. Any exercise of a Purchase Option under this Section
3.18 with respect to a Trust Mortgage Loan that is part of a Loan Combination
shall be subject to the rights of the related Non-Trust Noteholder(s) to
purchase such Trust Mortgage Loan pursuant to the related Loan Combination
Intercreditor Agreement.
SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deposit in the Collection Account
on each P&I Advance Date (prior to any transfer of funds from the Collection
Account to the Distribution Account on such date), without any right of
reimbursement therefor with respect to those Trust Mortgage Loans that were, in
each such case, subject to a Principal Prepayment during the most recently ended
Collection Period (other than Principal Prepayments made out of Insurance
Proceeds or Liquidation Proceeds and other than Casualty/Condemnation Principal
Prepayments) creating a Prepayment Interest Shortfall, an aggregate amount equal
to the lesser of (i) the amount of the related Prepayment Interest Shortfalls in
respect of the Trust Mortgage Loans and (ii) the sum of (A) that portion of the
Master Servicing Fees on the Mortgage Pool that represents an accrual at a rate
of 0.01% per annum and (B) the total amount of Prepayment Interest Excesses that
were collected during the related Collection Period; provided, however, that if
a Prepayment Interest Shortfall occurs as a result of the Master Servicer's
allowing the related Mortgagor to deviate from the terms of the related Mortgage
Loan documents regarding principal prepayments (other than (x) subsequent to a
material default under the related Mortgage Loan documents, (y) pursuant to
applicable law or a court order, then, for purposes of determining the payment
that the Master Servicer is required to make to cover that Prepayment Interest
Shortfall, the reference to "Master Servicing Fee" in clause (A) above shall be
construed to include (1) the entire Master Servicing Fees payable to the Master
Servicer with respect to the related Collection Period, and inclusive of any
portion payable to a third-party primary servicer and (2) the amount of any
investment income earned by the Master Servicer on the related Principal
Prepayment while on deposit in the Collection Account. .
Following the payments made by the Master Servicer pursuant to the
preceding paragraph (excluding the payments contemplated by the proviso to the
sole sentence of the preceding
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paragraph), the Master Servicer shall apply any remaining Prepayment Interest
Excesses to offset any Casualty/Condemnation Interest Shortfall incurred with
respect to any Trust Mortgage Loan during the subject Collection Period.
Except as provided in the preceding paragraphs, no other
compensation to the Master Servicer shall be available to cover Prepayment
Interest Shortfalls. The Master Servicer's obligation to make any particular
deposit in respect of any Collection Period as set forth in this Section 3.19(a)
shall not, in the absence of default under this Section 3.19(a), carry over to
any subsequent Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan that
is secured by the interest of the related Mortgagor under a Ground Lease,
promptly (and in any event within 60 days of the Closing Date) notify the
related ground lessor in writing of the transfer of such Mortgage Loan to the
Trust Fund pursuant to this Agreement and inform such ground lessor that any
notices of default under the related Ground Lease should thereafter be forwarded
to the Master Servicer. The costs and expenses of any modifications to Ground
Leases shall be paid by the related Mortgagor.
(c) The Master Servicer shall deliver to each Mortgage Loan
Seller upon request, without charge, no more than twice per calendar year a
current list of the Mortgagors relating to the Mortgage Loans (as identified on
the Mortgage Loan Schedule) sold by such Mortgage Loan Seller to the Depositor
and their respective billing addresses and telephone numbers; provided, however,
that the Master Servicer shall be under no obligation to provide any such
information not in its possession.
(d) The Master Servicer and the Special Servicer shall each be
responsible for providing (i) to each Non-Trust Noteholder such notices
regarding defaults and events of default with respect to the related Loan
Combination as are required from the holder of the related Trust Mortgage Loan
that is part the related Loan Combination under the related Loan Combination
Intercreditor Agreement, and (ii) to any lender of related mezzanine debt as may
be required from the Trust, as holder of a Trust Mortgage Loan, under any
related co-lender, intercreditor or similar agreement.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (with respect to any Mortgage Loan
that is not a Specially Serviced Mortgage Loan) and the Special Servicer (with
respect to any Specially Serviced Mortgage Loan) each may (consistent with the
Servicing Standard) agree to any modification, waiver or amendment of any term
of, extend the maturity of (in the case of the Master Servicer, subject to a
maximum of two separate one-year extensions without the consent of the Special
Servicer), defer or forgive interest (including Penalty Interest and 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 Mortgagor on or any guarantor of, any Mortgage Loan, and/or
provide consents with respect to any leasing activity at a Mortgaged Property
securing any Mortgage Loan without the consent of the Trustee or any
Certificateholder; provided, that the Master Servicer's and the Special
Servicer's rights to do so shall be subject to Section 3.08, Section 6.11 and
Section 6.12 (and, in the case of a Loan Combination, subject to the terms of
the related Loan Combination Intercreditor Agreement) and, further, to the
following subsections of this Section 3.20; and provided, further, that other
than as provided in Sections 3.02(a) (relating to waivers of Default Charges),
3.08, 3.20(d) and 3.20(e), the Master Servicer shall not agree to any
modification, waiver, forbearance or amendment of any term of, or take any of
the other acts referenced in this Section 3.20(a) with respect to, any Mortgage
Loan, unless the Master Servicer has obtained the consent of the Special
Servicer (it being understood and agreed that (A) the Master Servicer will
promptly provide the Special Servicer with notice of any Mortgagor request for
such
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modification, waiver, forbearance or amendment, the Master Servicer's written
recommendations and analysis, and all information reasonably available to the
Master Servicer that the Special Servicer may reasonably request in order to
withhold or grant any such consent, (B) the Special Servicer shall decide
whether to withhold or grant such consent in accordance with the Servicing
Standard and Section 6.11 and Section 6.12 and (C) if any such consent has not
been expressly denied within 10 Business Days (or, if the Controlling Class
Representative is entitled to object pursuant to Section 6.11 (or, in the case
of a Loan Combination, the Loan Combination Controlling Party is entitled to
object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall
include the five Business Days specified in the proviso at the end of the first
paragraph of Section 6.11) after the Special Servicer's receipt from the Master
Servicer of the Master Servicer's recommendations and analysis and all
information reasonably requested thereby and reasonably available to the Master
Servicer in order to make an informed decision (or, if the Special Servicer did
not request any information, within 10 Business Days (or 15 Business Days, if
applicable) after such notice), such consent shall be deemed to have been
granted).
(b) All modifications, waivers or amendments of any Mortgage
Loan shall be in writing and shall be considered and effected in accordance with
the Servicing Standard. Neither the Master Servicer nor the Special Servicer, as
applicable, shall make or permit or consent to, as applicable, any modification,
waiver or amendment of any term of any Mortgage Loan that would result in an
Adverse REMIC Event. The Master Servicer or Special Servicer shall determine and
may conclusively rely on an Opinion of Counsel (which Opinion of Counsel shall
be an expense of the Trust Fund to the extent not paid by the related Mortgagor)
to the effect that such modification, waiver or amendment would not (1) effect
an exchange or reissuance of the Mortgage Loan under Treasury Regulations
Section 1.860G-2(b) of the Code, (2) cause either of REMIC I or REMIC II to fail
to qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions, or (3) adversely affect the status of any of Grantor Trust
A-3FL, Grantor Trust AN-FL or Grantor Trust Z under the Code.
(c) The Special Servicer, on behalf of the Trust Fund, may
agree or consent to (or permit the Master Servicer to agree or consent to) any
modification, waiver or amendment of any term of any Mortgage Loan that would:
(i) affect the amount or timing of any related payment
of principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and amounts
payable as additional servicing compensation) payable thereunder-
(including, subject to the discussion in the following paragraph, any
related Balloon Payment); or
(ii) affect the obligation of the related Mortgagor to
pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments; or
(iii) in the judgment of the Special Servicer, materially
impair the security for such Mortgage Loan or reduce the likelihood of
timely payment of amounts due thereon;
only if (A) a material default on the Mortgage Loan has occurred or, in the
Special Servicer's judgment, a material default on the Mortgage Loan is
reasonably foreseeable, and (B) the modification, waiver, amendment or other
action is reasonably likely to produce a greater recovery to the
Certificateholders (and, in the case of a Loan Combination, the related
Non-Trust Noteholder(s)), as a collective whole, on a present value basis, than
would liquidation.
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In addition, subject to the third paragraph of this Section 3.20(c),
the Special Servicer may (or permit the Master Servicer to) extend the date on
which any Balloon Payment is scheduled to be due in respect of a Specially
Serviced Mortgage Loan if the conditions set forth in the proviso to the prior
paragraph are satisfied and the Special Servicer has obtained an Appraisal of
the related Mortgaged Property in connection with such extension, which
Appraisal supports the determination of the Special Servicer contemplated by
clause (B) of the proviso to the immediately preceding paragraph.
In no event will the Master Servicer or Special Servicer (i) extend
the maturity date of a Mortgage Loan beyond a date that is two years prior to
the Rated Final Distribution Date and (ii) if the Mortgage Loan is secured by a
Ground Lease (and not by the corresponding fee simple interest), extend the
maturity date of such Mortgage Loan beyond a date which is less than 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, and with the consent of
the Controlling Class Representative, 10 years) prior to the expiration of the
term of such Ground Lease including any unilateral options to extend such term.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(c) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and, in the case of a Loan Combination, the related Non-Trust
Noteholder(s) and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall append to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(d) Except as expressly contemplated by the related Mortgage
Loan documents, the Special Servicer shall not consent to the Master Servicer's
releasing, which consent shall be deemed given if not denied in writing within
10 Business Days (or, if the Controlling Class Representative is entitled to
object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan
Combination Controlling Party is entitled to object pursuant to Section 6.12),
15 Business Days, which 15 Business Days shall include the five Business Days
specified in the proviso at the end of the first paragraph of Section 6.11), any
real property collateral securing an outstanding Mortgage Loan, except as
provided in Section 3.09 or 3.20(e), or except in connection with a permitted
defeasance, or except where a Mortgage Loan (or, in the case of a Crossed Loan
Group, where such entire Crossed Loan Group) is satisfied, or except in the case
of a release of real property collateral provided the Rating Agencies have been
notified in writing and, with respect to a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, (A) either (1) such release will not, in the reasonable
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), materially and adversely affect the net operating income being
generated by or the then-current 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 property collateral with an appraised value at least equal to
that of the collateral to be released, is delivered), (B) the release does not
materially adversely affect the adequacy of the remaining Mortgaged Property
(together with any substitute real property collateral), in the reasonable
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), as security for the Mortgage Loan and (C) if the real property
collateral to be released has an appraised value in excess of $1,500,000, such
release would not, in and of itself, result in an Adverse Rating Event (as
confirmed in writing to the Trustee by each Rating Agency).
(e) Notwithstanding anything in this Section 3.20, Section
3.08, Section 6.11 or Section 6.12 to the contrary, the Master Servicer shall
not be required to seek the consent of, or provide prior notice to, the Special
Servicer, any Certificateholder or the Controlling Class Representative or
obtain any confirmation of the Certificate ratings from the Rating Agencies in
order to approve the
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following modifications, waivers or amendments of the Mortgage Loans (but, in
the case of the actions described in clauses (iii) and (iv) of this sentence,
shall notify the Controlling Class Representative thereof): (i) waivers of
non-material covenant defaults (other than financial covenants), including late
financial statements; (ii) waivers of Default Charges, to the extent allowed
under Section 3.02; (iii) releases of unimproved parcels of a Mortgaged
Property; (iv) grants of easements, rights-of-way or other similar agreements in
accordance with Section 3.08(b); (v) approval of routine leasing activities that
affect less than the lesser of 30,000 square feet or 30% of the net rentable
area of the related Mortgaged Property; (vi) approval of annual budgets to
operate the Mortgaged Property; (vii) temporary waivers of any requirements in
the related Mortgage Loan documents with respect to insurance deductible amounts
or claims-paying ability ratings of insurance providers; and (viii) consenting
to changing the property manager with respect to any Mortgage Loan with an
unpaid principal balance of less than $2,000,000; provided that any such
modification, waiver or amendment, or agreeing to any such modification, waiver
or amendment, (w) would not in any way affect a payment term of the
Certificates, (x) would not constitute a "significant modification" of such
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 or an
Adverse Grantor Trust Event with respect to any of Grantor Trust A-3FL, Grantor
Trust AN-FL or Grantor Trust Z, (y) would be consistent with the Servicing
Standard, and (z) shall not violate the terms, provisions or limitations of this
Agreement or any other document contemplated hereby.
(f) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in no way limit
the Special Servicer's ability to charge and collect from the Mortgagor costs
otherwise collectible under the terms of the related Mortgage Note and this
Agreement together with interest thereon.
(g) The Special Servicer or, the Master Servicer may, as a
condition to granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within its discretion pursuant to the terms of the instruments evidencing or
securing the related Mortgage Loan and is permitted by the terms of this
Agreement, require that such Mortgagor pay to it (i) as additional servicing
compensation, a reasonable or customary fee for the additional services
performed in connection with such request, provided such fee would not itself be
a "significant modification" pursuant to Treasury Regulations Section
1.1001-3(e)(2) and (ii) any related costs and expenses incurred by it. In no
event shall the Special Servicer be entitled to payment for such fees or
expenses unless such payment is collected from the related Mortgagor.
(h) The Master Servicer and Special Servicer shall notify each
other, the Trustee, the Controlling Class Representative and, in the case of a
Loan Combination, the related Non-Trust Noteholder(s), in writing, of any
modification, waiver or amendment of any term of any Mortgage Loan (including
fees charged the Mortgagor) and the date thereof, and shall deliver to the
Custodian for deposit in the related Mortgage File, (in the case of the Special
Servicer, with a copy to the Master Servicer), an original counterpart of the
agreement relating to such modification, waiver or amendment, promptly (and in
any event within 10 Business Days) following the execution thereof. Copies of
each agreement whereby any such modification, waiver or amendment of any term of
any Mortgage Loan is effected shall be made available for review upon prior
request during normal business hours at the offices of the Master Servicer
pursuant to Section 3.15(a) hereof.
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(i) With respect to each Mortgage Loan that provides for
defeasance, the Master Servicer shall, to the extent permitted by the terms of
such Mortgage Loan, require the related Mortgagor (i) to provide replacement
collateral consisting of U.S. government securities within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Loan (or defeased portion thereof)
when due (and assuming, in the case of an ARD Loan, to the extent consistent
with the related Mortgage Loan documents, that such 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 Master Servicer, to
designate a single purpose entity (which may be a subsidiary of the Master
Servicer established for the purpose of assuming all defeased Mortgage Loans) to
assume the 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 (subject to
bankruptcy, insolvency and similar standard exceptions), and (vi) in the case of
a partial defeasance of the 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. If the subject Mortgage Loan is not a Significant
Mortgage Loan and if either the terms of the subject Mortgage Loan permit the
Master Servicer to impose the foregoing requirements or the Master Servicer
satisfies such requirements on its own, then confirmation that such defeasance
will not result in an Adverse Rating Event is not required from DBRS or Fitch
and is not required from S&P so long as the Master Servicer delivers to S&P a
certification substantially in the form attached hereto as Exhibit K. In such
case, the Master Servicer shall provide the Rating Agencies and the Controlling
Class Representative with notice that the foregoing requirements have been met
with respect to the subject Mortgage Loan. However, if the subject Mortgage Loan
is a Significant Mortgage Loan or if the terms of the subject Mortgage Loan do
not permit the Master Servicer to impose such requirements and the Master
Servicer does not satisfy such requirements on its own, then the Master Servicer
shall so notify the Rating Agencies and the Controlling Class Representative
(and, in the case of a Loan Combination, the related Non-Trust Noteholder(s), as
applicable and, so long as such a requirement would not violate applicable law
or the Servicing Standard, obtain a confirmation from each Rating Agency that
such defeasance will not result in an Adverse Rating Event. Subject to the
related Mortgage Loan documents and applicable law, the Master Servicer shall
not execute a defeasance unless (a) the subject Mortgage Loan requires the
Mortgagor to pay all Rating Agency fees associated with defeasance (if Rating
Agency confirmation of the absence of an Adverse Rating Event is a specific
condition 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 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 Master Servicer or the Special Servicer which may result
in legal expenses to the Trust Fund), and (b) the Mortgagor is required to
provide or the Master Servicer receives from Independent counsel at the
Mortgagor's expense 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 Mortgage Loan documents are fully enforceable in accordance
with their terms (subject to bankruptcy, insolvency and similar standard
exceptions), and any applicable rating confirmations. In addition, if in
connection with a defeasance of any Mortgage Loan the applicable Mortgage Loan
Seller bears the costs and expenses associated with such defeasance in
accordance with the terms of the applicable Mortgage Loan Purchase Agreement,
any costs and expenses subsequently recovered by the Master Servicer from the
related Mortgagor in respect of such defeasance shall be promptly remitted by
the Master Servicer to the applicable Mortgage Loan Seller.
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Subsequent to the second anniversary of the Closing Date, to the
extent that the Master Servicer can, in accordance with the related Mortgage
Loan documents, require defeasance of any Mortgage Loan in lieu of accepting a
prepayment of principal thereunder, including a prepayment of principal
accompanied by a Prepayment Premium or Yield Maintenance Charge, the Master
Servicer shall, to the extent it is consistent with the Servicing Standard,
require such defeasance, provided that the conditions set forth in clauses (i)
through (vi) of the first sentence of the immediately preceding paragraph have
been satisfied. Notwithstanding the foregoing, if at any time, a court with
jurisdiction in the matter shall hold that the related Mortgagor may obtain a
release of the subject Mortgaged Property but is not obligated to deliver the
full amount of the defeasance collateral contemplated by the related Mortgage
Loan documents (or cash sufficient to purchase such defeasance collateral), then
the Master Servicer shall (i) if consistent with the related Mortgage Loan
documents, refuse to allow the defeasance of the Mortgage Loan or (ii) if the
Master Servicer cannot so refuse and if the related Mortgagor has delivered cash
to purchase defeasance collateral, the Master Servicer shall either (A) to the
extent of the cash delivered by the Mortgagor, purchase defeasance collateral or
(B) prepay the Mortgage Loan, in either case, in accordance with the Servicing
Standard.
For purposes of this paragraph, a "single purpose entity" shall mean
a Person, other than an individual, whose organization documents provide as
follows: it is formed solely for the purpose of owning and operating a single
property, assuming one or more Mortgage Loans (or, in the case of a Loan
Combination, the Loan Combination) and owning and pledging the related
Defeasance Collateral; it may not engage in any business unrelated to such
property and the financing thereof; it does not have and may not own any assets
other than those related to its interest in the property or the financing
thereof and may not incur any indebtedness other than as permitted by the
related Mortgage; it shall maintain its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of any
other person; it shall hold regular meetings, as appropriate, to conduct its
business, and shall observe all entity-level formalities and record keeping; it
shall conduct business in its own name and use separate stationery, invoices and
checks; it may not guarantee or assume the debts or obligations of any other
person; it shall not commingle its assets or funds with those of any other
person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with affiliates on an arm's
length basis pursuant to written agreements; and it shall hold itself out as
being a legal entity, separate and apart from any other person. The single
purpose entity organizational documents shall provide that any dissolution and
winding up or insolvency filing for such entity requires the unanimous consent
of all partners or members, as applicable, and that such documents may not be
amended with respect to the single purpose entity requirements during the term
of the Mortgage Loan (or the Loan Combination, if applicable).
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charges in respect of any Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer under Section 3.11 out of such Default Charges shall be reduced
proportionately, based upon the respective amounts that had been payable thereto
out of such Default Charges immediately prior to such waiver.
(k) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall give
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager with
respect to any Mortgaged Property that secures a Significant Mortgage Loan
unless it has received
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prior written confirmation (the cost of which shall be paid by the related
Mortgagor, if so allowed by the terms of the related loan documents, and if not
so allowed, paid as an Additional Trust Fund Expense) from the Rating Agencies
that such action will not result in an Adverse Rating Event.
(l) Notwithstanding anything in this Section 3.20 to the
contrary:
(i) the limitations, conditions and restrictions set
forth in this Section 3.20 shall not apply to any act or event (including,
without limitation, a release of collateral) in respect of any Mortgage
Loan that is required under the Mortgage Loan documents or that either
occurs automatically or results from the exercise of a unilateral option
by the related Mortgagor within the meaning of Treasury Regulations
Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage
Loan in effect on the Closing Date (or, in the case of a Qualified
Substitute Mortgage Loan, on the related date of substitution); and
(ii) neither the Master Servicer nor the Special Servicer
shall be required to oppose the confirmation of a plan in any bankruptcy
or similar proceeding involving a Mortgagor if, in its reasonable
judgment, such opposition would not ultimately prevent the confirmation of
such plan or one substantially similar.
(m) Neither the Special Servicer nor the Master Servicer shall
have any liability to the Trust, the Certificateholders, any Non-Trust
Noteholder or any other Person if its analysis and determination that the
modification, waiver, amendment or other action contemplated by this Section
3.20 is reasonably likely to produce a greater recovery to Certificateholders on
a present value basis than would liquidation should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis by the Special Servicer and/or the Master Servicer, and consistent with
the Servicing Standard.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan, the Master Servicer shall promptly
notify the Trustee, the Special Servicer and the Controlling Class
Representative (and with respect to a Loan Combination, the related Non-Trust
Noteholder(s)), and if the Master Servicer is not also the Special Servicer, the
Master Servicer shall promptly deliver or cause to be delivered a copy of the
related Servicing File, to the Special Servicer and shall use reasonable efforts
to provide the 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 the Mortgage Loan, either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto.
The Master Servicer shall use reasonable efforts to comply with the preceding
sentence within five Business Days of the occurrence of each related Servicing
Transfer Event; provided, however, if the information, documents and records
requested by the Special Servicer are not contained in the Servicing File, the
Master Servicer shall have such period of time as reasonably necessary to make
such delivery. After the occurrence of a Servicing Transfer Event, the Special
Servicer shall collect payments on such Mortgage Loan and make remittances to
the Master Servicer in accordance with Section 3.04.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall
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immediately give notice thereof to the Master Servicer and the Controlling Class
Representative (and with respect to a Loan Combination, the related Non-Trust
Noteholder(s)), and shall return the related Servicing File and all other
information, documents and records that were not part of the Servicing File when
it was delivered to the Special Servicer within five Business Days of the
occurrence, to the Master Servicer (or such other Person as may be directed by
the Master Servicer) and upon giving such notice, and returning such Servicing
File, to the Master Servicer (or such other Person as may be directed by the
Master Servicer), the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and copies of
any additional related Mortgage Loan information, including correspondence with
the related Mortgagor.
(c) No later than 60 days after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan (or, in the case of the Kenwood Towne Centre
Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan, 45
days), the Special Servicer shall deliver to each Rating Agency, the Trustee,
the Master Servicer, the Controlling Class Representative and, in the case of
the Kenwood Towne Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined
Trust Mortgage Loan, the related Loan Combination Controlling Party, a report
(the "Asset Status Report") with respect to such Loan and the related Mortgaged
Property. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent with
the Servicing Standard, that are applicable to the exercise of remedies as
aforesaid 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;
(iv) the Appraised Value of the Mortgaged Property
together with the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action
with respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard;
provided, however, that if a Loan Combination is involved, the Asset Status
Report shall be in respect of the entire Loan Combination.
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With respect to any Mortgage Loan other than the Kenwood Towne
Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan
and, in each case, the related Loan Combination, within 10 Business Days of
receiving an Asset Status Report which relates to a recommended action as to
which the Controlling Class Representative is entitled to object under Section
6.11, the Controlling Class Representative does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law, the
Servicing Standard, or the terms of the applicable Mortgage Loan documents. If,
subject to Section 6.11 or Section 6.12, as the case may be, the Controlling
Class Representative disapproves such Asset Status Report, the Special Servicer
will revise such Asset Status Report and deliver to the Controlling Class
Representative, the Rating Agencies, the Trustee and the Master Servicer a new
Asset Status Report as soon as practicable, but in no event later than 30 days
after such disapproval.
With respect to any Mortgage Loan other than the Kenwood Towne
Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan
and, in each case, the related Loan Combination, the Special Servicer shall
revise such Asset Status Report as described above in this Section 3.21(c) until
the Controlling Class Representative shall fail to disapprove such revised Asset
Status Report in writing within 10 Business Days of receiving such revised Asset
Status Report or until the Special Servicer makes one of the determinations
described below. With respect to any Mortgage Loan other than the Kenwood Towne
Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan
and, in each case, the related Loan Combination, the Special Servicer may, from
time to time, modify any Asset Status Report it has previously delivered and
implement such modified report, provided such modified report shall have been
prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report (and consistent
with the terms hereof) before the expiration of a 10 Business Day period if the
Special Servicer has reasonably determined that failure to take such action
would materially and adversely affect the interests of the Certificateholders
(and, in the case of a Loan Combination other than the Kenwood Towne Centre Loan
Combination or the 00 Xxxxx Xxxxxx Loan Combination, the related Non-Trust
Noteholder(s)) and it has made a reasonable effort to contact the Controlling
Class Representative and (ii) in any case, shall determine whether such
affirmative disapproval is not in the best interest of all the
Certificateholders (and, in the case of a Loan Combination other than the
Kenwood Towne Centre Loan Combination or the 00 Xxxxx Xxxxxx Loan Combination,
the related Non-Trust Noteholder(s)) pursuant to the Servicing Standard.
In the event the Controlling Class Representative and the Special
Servicer have been unable to agree upon an Asset Status Report with respect to a
Specially Serviced Mortgage Loan (other than the Kenwood Towne Centre Trust
Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan) within 90
days of the Controlling Class Representative's receipt of the initial Asset
Status Report, the Special Servicer shall implement the actions directed by the
Controlling Class Representative unless doing so would result in any of the
consequences set forth in the last paragraph of this Section 3.21, in which case
the Special Servicer shall implement the actions described in the most recent
Asset Status Report submitted to the Controlling Class Representative by the
Special Servicer.
In the case of the either of the Kenwood Towne Centre Loan
Combination or the 00 Xxxxx Xxxxxx Loan Combination, the related Loan
Combination Controlling Party shall have a period of 10 days to convey to the
Special Servicer its recommendations regarding the related Asset Status Report.
Notwithstanding the preceding sentence, the Special Servicer may take any action
set forth in an Asset Status Report before the expiration of the 10-day period
referred to in the preceding sentence if (i) the
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Special Servicer has reasonably determined that failure to take such action
before the expiration of such 10-day period would materially and adversely
affect the interests of the Certificateholders and the related Non-Trust
Noteholders as a collective whole and (ii) the Special Servicer has made a
reasonable effort to contact the related Loan Combination Controlling Party. In
the event that the Asset Status Report with respect to either of the Kenwood
Towne Centre Trust Mortgage Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage
Loan recommends one of the Loan Combination Specially Designated Servicing
Actions, the Special Servicer shall consult with the related Loan Combination
Controlling Party and shall not take any Loan Combination Specially Designated
Servicing Action unless and until the related Loan Combination Controlling Party
(subject to the provisions of the related Loan Combination Intercreditor
Agreement) has approved (or is deemed to have approved) such action.
In the event that a B-Note Loan Holder is no longer the Loan
Combination Controlling Party because a Loan Combination Control Appraisal Event
is in effect with respect to such Mortgage Loan, such B-Note Loan Holder shall
have non-binding consultation rights to consult with the Special Servicer.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard, the terms hereof and the related Asset
Status Report. The Special Servicer shall not take any action inconsistent with
the related Asset Status Report, unless such action would be required in order
to act in accordance with the Servicing Standard.
Notwithstanding the fact that an Asset Status Report has been
prepared and/or approved, the Controlling Class Representative will remain
entitled to advise and object regarding the actions set forth in Section 6.11(a)
and any related Asset Status Report shall not be a substitute for the exercise
of those rights.
No direction of objection by or failure to approve by the
Controlling Class Representative or the majority of the Certificateholders (or,
in the case of the Kenwood Towne Centre Loan Combination or the 00 Xxxxx Xxxxxx
Loan Combination, the related Loan Combination Controlling Party) in connection
with any Asset Status Report shall (w) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standard and to maintain the REMIC status of
each REMIC, (x) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions or (y) expose the
Master Servicer, the Special Servicer, the Depositor, any of the Mortgage Loan
Sellers, the Trust Fund, the Trustee or any Fiscal Agent or the officers and the
directors of each party to any claim, suit or liability to which they would not
otherwise be subject absent such direction or (z) expand the scope of the Master
Servicer's, the Trustee's, any Fiscal Agent's or the Special Servicer's
responsibilities under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), the Master
Servicer and the 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, in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof (other than
Section 7.01(a) (x), (xi) and (xii)) to the extent applicable (modified to apply
to the Sub-Servicer instead of the Master Servicer); (ii) provides that, if the
Sub-Servicer constitutes an
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Additional Item 1123 Servicer, then it will deliver to the applicable parties an
Annual Statement of Compliance in respect of the Sub-Servicer as and when
contemplated by Section 3.13 and, if the Sub-Servicer constitutes a
Sub-Servicing Function Participant, then it will deliver, or cause to be
delivered, to the applicable parties, an Annual Assessment Report in respect of
the Sub-Servicer and a corresponding Annual Attestation Report (and the consent
of the applicable registered public accounting firm to file it with the
Commission) as and when contemplated by Section 3.14; (iii) provides that if the
Master Servicer or the 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), the Trustee or its designee may thereupon (1)
assume all of the rights and, except to the extent such obligations arose prior
to the date of assumption, obligations of the Master Servicer or the Special
Servicer, as the case may be, under such agreement or (2) (except with respect
only to the Sub-Servicing Agreements in effect as of the date of this Agreement
(the Sub-Servicers that are party to such agreements are indicated on Schedule V
hereto)) may terminate such sub-servicing agreement without cause and without
payment of any penalty or termination fee (other than the right of reimbursement
and indemnification); (iv) provides that the Trustee, for the benefit of the
Certificateholders and, in the case of a Sub-Servicing Agreement relating to a
Loan Combination, the related Non-Trust Noteholder(s), shall each be a third
party beneficiary under such agreement, but that (except to the extent the
Trustee or its designee assumes the obligations of the Master Servicer or the
Special Servicer, as the case may be, thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trustee, any Fiscal Agent, the
Trust Fund, any successor Master Servicer or Special Servicer, as the case may
be, any Non-Trust Noteholder or any Certificateholder shall have any duties
under such agreement or any liabilities arising therefrom; (v) permits any
purchaser of a Trust Mortgage Loan pursuant to this Agreement to terminate such
agreement with respect to such purchased Trust Mortgage Loan at its option and
without penalty; (vi) does not permit the Sub-Servicer to enter into or consent
to any modification, extension, waiver or amendment or otherwise take any action
on behalf of the Master Servicer or the Special Servicer contemplated by Section
3.08, Section 3.09 and Section 3.20 hereof without the consent of such Special
Servicer or conduct any sale of a Mortgage Loan or REO Property contemplated by
Section 3.18; and (vii) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer
(including any with an effective date on or before the Closing Date) shall
provide that such agreement shall, with respect to any Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be subject to the Special Servicer's
rights to service such Mortgage Loan for so long as such Mortgage Loan continues
to be a Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement
entered into by the Special Servicer shall relate only to Specially Serviced
Mortgage Loans and shall terminate with respect to any such Mortgage Loan that
ceases to be a Specially Serviced Mortgage Loan. The Master Servicer and the
Special Servicer will each be solely liable for all fees owed by it to any
Sub-Servicer with which it has entered into a Sub-Servicing Agreement,
irrespective of whether its compensation under this Agreement is sufficient to
pay those fees. The Master Servicer and the Special Servicer each shall deliver
to the Trustee and each other copies of all Sub-Servicing Agreements, as well as
any amendments thereto and modifications thereof, entered into by it promptly
upon its execution and delivery of such documents. References in this Agreement
to actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer hereunder to make P&I Advances or Servicing Advances
shall be deemed to have been advanced by the Master Servicer out of its own
funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer. For so long as they are
outstanding, Advances shall accrue interest in accordance with Sections 3.03(d)
and
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4.03(d), as applicable, such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer and the
Special Servicer each shall be deemed to have received any payment when a
Sub-Servicer retained by it receives such payment. The Master Servicer and the
Special Servicer each shall notify the other, the Trustee, the Depositor and, if
a Loan Combination is involved, the related Non-Trust Noteholder(s), in writing
promptly of the appointment by it of any Sub-Servicer after the date of this
Agreement. The Master Servicer and the Special Servicer shall each notify the
Trustee and the Depositor in writing, promptly upon becoming aware thereof,
whether any Sub-Servicer constitutes an Additional Item 1123 Servicer or a
Sub-Servicing Function Participant. Each of the initial Master Servicer and the
initial Special Servicer hereby represents and warrants that, as of the Closing
Date, it has not retained and does not expect to retain any particular Person or
group of affiliated Persons to act as a Servicer with respect to 10% or more of
the Mortgage Pool (by balance).
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders and, in the case of a Loan
Combination, also for the benefit of the related Non-Trust Noteholder(s), shall
(at no expense to the Trustee, the Certificateholders, the subject Loan
Combination, any related Non-Trust Noteholder or the Trust Fund) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements 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 the Master Servicer or the Special Servicer, as applicable,
in its good faith business judgment, would require were it the owner of the
subject Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement, the Master Servicer and the Special Servicer may each have the right
to remove a Sub-Servicer at any time it considers such removal to be in the best
interests of Certificateholders.
(d) In the event of the resignation, removal or other
termination of Wachovia or any successor Master Servicer hereunder for any
reason, the Trustee or other Person succeeding such resigning, removed or
terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the date of this Agreement: (i) to
assume the rights and obligations of the Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer on such terms as the Trustee or other successor Master Servicer and
such Sub-Servicer shall mutually agree (it being understood that such
Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an event of default (within the meaning of such Sub-Servicing
Agreement) has occurred and is continuing (that is not subject to any applicable
grace or cure period under the Sub-Servicing Agreement), in each case without
paying any sub-servicer termination fee.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee, the Certificateholders and any Non-Trust Noteholder 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
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each alone were servicing and administering the Mortgage Loans and/or REO
Properties for which it is responsible.
In addition, the Special Servicer may not enter into any
Sub-Servicing Agreement without the approval of the Controlling Class
Representative, and the rights and obligations of each of the Master Servicer
and the Special Servicer to appoint a Sub-Servicer with respect to a Loan
Combination shall be subject to the related Loan Combination Intercreditor
Agreement. Furthermore, notwithstanding anything herein to the contrary, until
the Trustee files a Form 15 with respect to the Trust in accordance with Section
8.15, neither the Master Servicer nor the Special Servicer shall retain or
engage any Sub-Servicer or other Servicing Representative that, in any case,
would constitute an Additional Item 1123 Servicer or a Sub-Servicing Function
Participant, without the express written consent of the Depositor (except to the
extent that the initial Master Servicer may do so in accordance with the Master
Servicer Indemnification Agreement).
SECTION 3.23. Representations and Warranties of Master Servicer
and Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit
of the Certificateholders, the Depositor, the Special
Servicer, any Fiscal Agent and each Non-Trust Noteholder, as
of the Closing Date, that:
(i) The Master Servicer is a national banking
association, duly organized and validly existing under the laws of the
United States, and the Master Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not have a material adverse
effect on the ability of the Master Servicer to perform its obligations
hereunder.
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
articles of incorporation or by-laws 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.
(iii) The Master Servicer 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 the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof, subject
to (A) applicable bankruptcy, liquidation, receivership, insolvency,
reorganization, 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 Master Servicer 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
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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 Master
Servicer's good faith reasonable judgment, is likely to affect materially
and adversely either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(vi) No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened, against the Master Servicer that
would prohibit the Master Servicer from entering into this Agreement or,
in the Master Servicer's good faith reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer, calculated on a consolidated basis.
(vii) Each officer, director, or employee of the Master
Servicer with responsibilities concerning the servicing and administration
of Mortgage Loans is covered by errors and omissions insurance and a
fidelity bond in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution, delivery
and performance by the Master Servicer of or compliance by the Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective, or if
any such consent, approval, authorization or order has not been or cannot
be obtained prior to the actual performance by the Master Servicer of its
obligations under this Agreement, the lack of such item would not have a
materially adverse effect on the ability of the Master Servicer to perform
its obligations under this Agreement.
(b) The Special Servicer, in such capacity, hereby represents
and warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor, the Master Servicer, any Fiscal Agent and
each Non-Trust Noteholder, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and the Special Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer's operating agreement 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 by which it is bound.
(iii) The Special Servicer 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 the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof, subject
to
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(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) The Special Servicer 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 the Special Servicer's good
faith reasonable judgment, is likely to affect materially and adversely
either the ability of the Special Servicer to perform its obligations
under this Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened, against the Special Servicer
that would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer, director and employee of the Special
Servicer and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution, delivery
and performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(ix) The Special Servicer possesses all insurance
required pursuant to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer
and the Special Servicer, set forth in Section 3.23(a) (with respect to the
Master Servicer) and Section 3.23(b) (with respect to the Special Servicer),
respectively, 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 Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
SECTION 3.24. Sub-Servicing Agreement Representation and
Warranty.
The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor, any Fiscal Agent and the Special
Servicer, as of the Closing Date, that each Sub-Servicing Agreement satisfies
the requirements for such Sub-Servicing Agreements set forth in Section 3.22(a)
and the second paragraph of Section 3.22(d) in all material respects.
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SECTION 3.25. Designation of 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 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a 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 Trustee that
the Controlling Class has changed, the Trustee 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 Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee, the Master Servicer and the Special Servicer with
written confirmation of its acceptance of such appointment, an address and
facsimile number for the delivery of notices and other correspondence and 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);
provided that the initial Controlling Class Representative shall be Anthracite
Capital, Inc. and no further notice shall be required for such appointment to be
effective.
(b) Within 10 Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall deliver to the requesting party 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
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Depository, and the
Master Servicer and the Special Servicer shall be entitled to conclusively rely
on such information provided by the Trustee with respect to any obligation or
right hereunder that the Master Servicer and the Special Servicer 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 Trustee shall notify the other parties to this Agreement of
such event. The expenses incurred by the Trustee in connection with obtaining
information from the Depository or Depository Participants with respect to any
Book-Entry Certificate shall be expenses of the Trust Fund payable out of the
Collection Account pursuant to Section 3.05(a).
(c) The Controlling Class Representative may at any time resign
as such by giving written notice to the Trustee and to 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
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Class shall be entitled to remove any existing Controlling Class Representative
by giving written notice to the Trustee and to such existing Controlling Class
Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 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 Trustee and each other
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 among such Holders (or
Certificate Owners) 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 Mortgagor with respect to this
Agreement or any particular Mortgage Loan, the Controlling Class Representative
shall immediately notify the Trustee, the Master Servicer and the Special
Servicer, whereupon (if the Special Servicer or the Trust Fund are also named
parties to the same action and, in the sole judgment of the Special Servicer,
(i) the Controlling Class Representative had acted in good faith, without
negligence or willful misfeasance with regard to the particular matter, and (ii)
there is no potential for the Special Servicer or the Trust Fund to be an
adverse party in such action as regards the Controlling Class Representative)
the Special Servicer on behalf of the Trust Fund shall, subject to Section 6.03,
assume the defense of any such claim against the Controlling Class
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Controlling Class Representative.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually received with
respect to any Mortgage Loan or REO 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 any Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer, in that order (except that payments to
the Special Servicer and Master Servicer shall be made concurrently on a
pro rata and pari passu basis), any interest due and owing to such party
on outstanding Advances made thereby with respect to such Mortgage Loan or
REO Loan, as the case may be;
second, to reimburse the Trust for any interest on Advances
paid to any Fiscal Agent, the Trustee, the Master Servicer or the Special
Servicer since the Closing Date with respect to such Mortgage Loan or REO
Loan, as the case may be, which interest was paid from a source other than
Default Charges collected on such Mortgage Loan or REO Loan, as the case
may be;
third, to pay any outstanding expense incurred by the
Special Servicer in connection with inspecting the related Mortgaged
Property or REO Property, as applicable, pursuant to Section 3.12;
fourth, to reimburse the Trust for any expenses reimbursed
to the Special Servicer since the Closing Date in connection with
inspecting the related Mortgaged Property or REO
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Property, as applicable, pursuant to Section 3.12, which expenses were
previously paid from a source other than Default Charges collected on such
Mortgage Loan or REO Loan, as the case may be;
fifth, to pay the appropriate party for any other
outstanding expense incurred thereby with respect to such Mortgage Loan or
REO Loan, as the case may be, which expense, if not paid out of Default
Charges collected on such Mortgage Loan or REO Loan, as the case may be,
will likely become an Additional Trust Fund Expense;
sixth, to reimburse the Trust for any other Additional Trust
Fund Expense paid to the appropriate party since the Closing Date with
respect to such Mortgage Loan or REO Loan, as the case may be, which
Additional Trust Fund Expense was paid from a source other than Default
Charges collected on such Mortgage Loan or REO Loan, as the case may be;
and
seventh, to pay (A) if such Mortgage Loan is a Non-Trust
Loan, any remaining portion of such Default Charges that is comprised of
late payment charges and (B) if such Mortgage Loan is a Trust Mortgage
Loan or such REO Loan is a Trust REO Loan, as the case may be, any
remaining portion of such Default Charges, in each case as additional
master servicing compensation to the Master Servicer, if such Default
Charges (or portion thereof comprised of late payment charges) were
collected when the loan was a non-Specially Serviced Mortgage Loan, and
otherwise to pay (X) if such Mortgage Loan is a Non-Trust Loan, any
remaining portion of such Default Charges that is comprised of late
payment charges and (Y) if such Mortgage Loan is a Trust Mortgage Loan or
such REO Loan is a Trust REO Loan, as the case may be, any remaining
portion of such Default Charges, in each case as additional special
servicing compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
any of clause second, clause fourth or clause sixth of Section 3.26(a) are
intended to be available for distribution on the Certificates pursuant to
Section 4.01(a) and Section 4.01(b), 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, and if such Default Charges so applied relate to a Loan
Combination, they shall be transferred from the related Loan Combination
Custodial Account to the Collection Account. Default Charges applied to
reimburse the Trust pursuant to any of clause second, clause fourth or clause
sixth of Section 3.26(a) shall be deemed to offset payments of interest on
Advances, costs of property inspections or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred with respect to the subject Mortgage Loan or REO Loan
(whereupon such interest on Advances, costs of property inspections or other
Additional Trust Fund Expenses (depending on which clause is applicable) shall
thereafter be deemed to have been paid out of Default Charges).
(c) The portion of any Default Charges with respect to a
Non-Trust Loan that is not applied as provided for above in this Section 3.26,
shall be applied pursuant to the related Loan Combination Intercreditor
Agreement.
SECTION 3.27. Controlling Class Representative Contact with
Servicer.
No less often than on a monthly basis, each of the Master
Servicer and the Special Servicer shall, without charge, make a knowledgeable
Servicing Officer via telephone available to verbally answer questions from the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or REO Properties for which the Master Servicer or the
Special Servicer, as the case may be, is responsible. Any such telephone contact
shall be conditioned on the
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Controlling Class Representative's delivery to the Master Servicer of an
agreement substantially in the form of Exhibit I-1 (or such other form as may be
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable).
SECTION 3.28. Certain Matters Regarding the Loan Combinations.
(a) The parties hereto, the Controlling Class Representative by
its acceptance of its rights and obligations set forth herein, and each
Certificateholder by its acceptance of a Certificate, hereby acknowledge the
right of the Non-Trust Noteholders, upon the occurrence of certain specified
events under the related Loan Combination Intercreditor Agreement, to purchase
the related Trust Mortgage Loan that is a part of the related Loan Combination
from the Trust, subject to the terms, conditions and limitations set forth in,
and at the price specified in, the related Loan Combination Intercreditor
Agreement, and the parties hereto agree to take such actions contemplated by the
related Loan Combination Intercreditor Agreement as may be expressly
contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust
Noteholder to purchase the related Trust Mortgage Loan from the Trust.
(b) In connection with any purchase of a Trust Mortgage Loan
that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to
the related Loan Combination Intercreditor Agreement, the Master Servicer or the
Special Servicer shall (i) if it receives the applicable purchase price provided
for in the related Loan Combination Intercreditor Agreement and/or any other
amounts payable in connection with the purchase, deposit same, or remit same to
the Master Servicer for deposit, as applicable, into the Collection Account or
the related Loan Combination Custodial Account, as applicable, and so notify the
Trustee; and (ii) deliver the related Servicing File to the Person effecting the
purchase or its designee. In addition, upon its receipt of a Request for Release
from the Master Servicer, the Trustee shall: (i) deliver the related Mortgage
File to the Person effecting the purchase or its designee; and (ii) execute and
deliver such endorsements, assignments and instruments of transfer as shall be
provided to it and are reasonably necessary to vest ownership of the subject
Trust Mortgage Loan in the appropriate purchaser, without recourse,
representations or warranties.
(c) The parties hereto acknowledge that each Non-Trust
Noteholder shall not (1) owe any fiduciary duty to the Trustee, the Master
Servicer, the Special Servicer or any Certificateholder or (2) have any
liability to the Trustee or the Certificateholders for any action taken, or for
refraining from the taking of any action pursuant to the related Loan
Combination Intercreditor Agreement or the giving of any consent or for errors
in judgment. Each Certificateholder, by its acceptance of a Certificate, shall
be deemed to have confirmed its understanding that each Non-Trust Noteholder (i)
may take or refrain from taking actions that favor its interests or the
interests of its affiliates over the Certificateholders, (ii) may have special
relationships and interests that conflict with the interest of the
Certificateholders and shall be deemed to have agreed to take no action against
a Non-Trust Noteholder or any of its officers, directors, employees, principals
or agents as a result of such special relationships or conflicts, and (iii)
shall not be liable by reason of its having acted or refrained from acting
solely in its interest or in the interest of its affiliates.
(d) The parties hereto, the Controlling Class Representative by
its acceptance of its rights and obligations set forth herein, and each
Certificateholder by its acceptance of a Certificate, also hereby acknowledge
the right of the B-Note Loan Holder with respect to each of the Kenwood Towne
Centre B-Note Non-Trust Loan and the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan =to
cure certain events of default by the Mortgagor with respect to the related Loan
Combination and to be reimbursed for any amounts advanced in connection with any
such cure, in each case pursuant to and subject to the terms, conditions and
limitations set forth in the related Loan Combination Intercreditor Agreement.
The
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Trustee, the Master Servicer and the Special Servicer hereby agree, as provided
in and subject to the terms, conditions and limitations set forth in the related
Loan Combination Intercreditor Agreement, not to treat any such default by the
subject Mortgagor that is so cured by a B-Note Loan Holder as a default for the
purposes specified in the related Loan Combination Intercreditor Agreement.
(e) To the extent not otherwise expressly provided for herein,
the Special Servicer shall provide to each B-Note Loan Holder or its designee,
with respect to the related B-Note Non-Trust Loan or any related Loan
Combination REO Property, subject to the same conditions and restrictions on the
distribution of information as apply with respect to reports, documents and
other information with respect to the Trust Mortgage Loans, the same reports,
documents and other information that the Special Servicer provides to the
Trustee with respect to the related A-Note Trust Mortgage Loan or the related
Loan Combination REO Property, and on a concurrent basis. The Trustee and the
Special Servicer shall each provide or make available to each B-Note Loan Holder
or its designee, with respect to the related B-Note Non-Trust Loan or any
related Loan Combination REO Property, the same reports, documents and other
information that the Trustee, the Master Servicer or the Special Servicer, as
the case may be, provides to the Controlling Class Representative, in so far as
they relate to the related A-Note Trust Mortgage Loan or the related Loan
Combination REO Property, and on a concurrent basis. In addition, the Trustee,
the Master Servicer or the Special Servicer, as applicable, shall, upon receipt
of a written request, provide to a B-Note Loan Holder or its designee (at such
holder's cost) all other documents and information that such holder or its
designee may reasonably request with respect to the related B-Note Non-Trust
Loan or any Loan Combination REO Property, to the extent such documents and
information are in its possession. Notwithstanding the foregoing, none of the
Trustee or the Special Servicer shall be required to deliver to any B-Note Loan
Holder or its designee any particular report, document or other information
pursuant to this Section 3.28(e) if and to the extent that (but only if and to
the extent that) such particular report, document or other information is
otherwise delivered to such B-Note Loan Holder within the same time period
contemplated by this Section 3.28(e) pursuant to any other section of this
Agreement.
SECTION 3.29. The Swap Agreements.
(a) The Trustee is hereby authorized and directed, not in its
individual capacity but solely as Trustee and on behalf, and for the benefit, of
the Trust, to execute and deliver each Swap Agreement on the Closing Date and to
perform obligations as described herein with respect to each Swap Agreement.
Furthermore, the Trustee is hereby authorized and directed to, and shall,
perform all obligations on the part of the Trustee and/or the Trust under each
Swap Agreement; provided that (i) payments to be made to the Class A-3FL Swap
Counterparty pursuant to Section 3.29(d) shall be made out of amounts allocable
as interest (or, in the case of Class A-3FL Additional Fixed Swap Payments,
Yield Maintenance Charges and Prepayment Premiums) distributable on or with
respect to the Class A-3FL REMIC II Regular Interest, (ii) payments to be made
to the Class AN-FL Swap Counterparty pursuant to Section 3.29(d) shall be made
out of amounts allocable as interest (or, in the case of Class AN-FL Additional
Fixed Swap Payments, Yield Maintenance Charges and Prepayment Premiums)
distributable on or with respect to the Class AN-FL REMIC II Regular Interest
and (iii) any termination payment owing to a Swap Counterparty shall be payable
solely out of any upfront payment made by a replacement swap counterparty with
respect thereto in connection with entering into a replacement interest rate
swap agreement with the Trust, and the Trustee shall not be responsible for
using its own funds in making such payments. Upon the Trustee entering into the
Swap Agreements on behalf of the Trust, the Trust shall be bound by the terms
and conditions of the Swap Agreements.
(b) Notwithstanding anything to the contrary in this Agreement,
the Class A-3FL Depositor's Retained Amount shall not be a part of the Class
A-3FL Grantor Trust or the Trust Fund,
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but instead shall belong to the Depositor; and the Trustee, on behalf of the
Trust, hereby assigns to the Depositor the Trust's entire right, title and
interest in and to the Class A-3FL Depositor's Retained Amount.
Also notwithstanding anything to the contrary in this Agreement, the
Depositor hereby agrees to pay to the Class AN-FL Swap Counterparty the initial
up-front payment contemplated to be paid by the Depositor under the Class AN-FL
Swap Agreement on the Closing Date.
(c) The Trustee shall act as "calculation agent" under each Swap
Agreement and shall timely perform all duties associated therewith.
In addition, by 5:00 p.m. (New York time) on the Business Day prior
to (or, in the case of item (i) below, no later than the Determination Date
relating to) each Distribution Date, based on (in the case of items (ii) and
(iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Trustee
shall notify the Class A-3FL Swap Counterparty in writing of (i) the Class
Principal Balance of the Class A-3FL Certificates immediately prior to the
related Distribution Date, (ii) the amount of any Prepayment Premiums and Yield
Maintenance Charges distributable with respect to the Class A-3FL REMIC II
Regular Interest for the related Distribution Date, and (iii) the amount of
interest distributable with respect to the Class A-3FL REMIC II Regular Interest
pursuant to Section 4.01(a) for such Distribution Date.
In addition, by 5:00 p.m. (New York time) on the Business Day prior
to (or, in the case of item (i) below, no later than the Determination Date
relating to) each Distribution Date, based on (in the case of items (ii) and
(iii) below) the CMSA Loan Periodic Update File for the related Collection
Period provided by the Master Servicer pursuant to Section 3.12, the Trustee
shall notify the Class AN-FL Swap Counterparty in writing of (i) the Class
Principal Balance of the Class AN-FL Certificates immediately prior to the
related Distribution Date, (ii) the amount of any Prepayment Premiums and Yield
Maintenance Charges distributable with respect to the Class AN-FL REMIC II
Regular Interest for the related Distribution Date, and (iii) the amount of
interest distributable with respect to the Class AN-FL REMIC II Regular Interest
pursuant to Section 4.01(a) for such Distribution Date.
(d) On each Distribution Date, following all deposits to the
Floating Rate Account on or prior to that date pursuant to Section 3.04(c), the
Trustee shall (i) remit the Class A-3FL Net Fixed Swap Payment, the Class A-3FL
Additional Fixed Swap Payment and the Class A-3FL Fixed Payer Shortfall
Reimbursement Payment, in each case if any, to the Class A-3FL Swap Counterparty
out of amounts on deposit in the Floating Rate Account that represent
distributions of Distributable Certificate Interest (or, in the case of the
Class A-3FL Additional Fixed Swap Payments, Yield Maintenance Charges and
Prepayment Premiums) in respect of the Class A-3FL REMIC II Regular Interest;
and (ii) remit the Class AN-FL Net Fixed Swap Payment, the Class AN-FL
Additional Fixed Swap Payment and the Class AN-FL Fixed Payer Shortfall
Reimbursement Payment, in each case if any, to the Class AN-FL Swap Counterparty
out of amounts on deposit in the Floating Rate Account that represent
distributions of Distributable Certificate Interest (or, in the case of the
Class AN-FL Additional Fixed Swap Payments, Yield Maintenance Charges and
Prepayment Premiums) in respect of the Class AN-FL REMIC II Regular Interest;
provided that, during the continuation of a Swap Payment Default under a Swap
Agreement while the Trustee is pursuing remedies under such Swap Agreement, or
following the termination of a Swap Agreement, the Trustee shall not make such
payments to the related Swap Counterparty. If by 3:00 p.m. New York City time on
any Class A-3FL Swap Payment Date the Trustee has not received any Class A-3FL
Net Floating Swap Payment payable by the Class A-3FL Swap Counterparty on such
date, the Trustee shall, consistent with the Class A-3FL Swap Agreement, in
order to, among other things, cause the commencement of the applicable grace
period, promptly notify the
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Class A-3FL Swap Counterparty that the Trustee has not received such Class A-3FL
Net Floating Swap Payment. If by 3:00 p.m. New York City time on any Class AN-FL
Swap Payment Date the Trustee has not received any Class AN-FL Net Floating Swap
Payment payable by the Class AN-FL Swap Counterparty on such date, the Trustee
shall, consistent with the Class AN-FL Swap Agreement, in order to, among other
things, cause the commencement of the applicable grace period, promptly notify
the Class AN-FL Swap Counterparty that the Trustee has not received such Class
AN-FL Net Floating Swap Payment.
(e) Subject to Section 8.02(iii), the Trustee shall at all times
enforce the Trust's rights under the Class A-3FL Swap Agreement. In the event of
a Swap Default under the Class A-3FL Swap Agreement, the Trustee shall (i)
provide notice of such Swap Default on the date of such default to the Class
A-3FL Swap Counterparty and (ii) promptly provide written notice to the Holders
of the Class A-3FL Certificates and, subject to Section 8.02(iii), shall be
required to take such actions (following the expiration of any applicable grace
period specified in the Class A-3FL Swap Agreement), unless otherwise directed
in writing by the Holders or Certificate Owners of Class A-3FL Certificates
representing at least 25% of the Class Principal Balance of the Class A-3FL
Certificates, to enforce such rights of the Trust under the Class A-3FL Swap
Agreement as may be permitted by the terms thereof, including termination
thereof, and use any Swap Termination Fees received from the Class A-3FL Swap
Counterparty to enter into a replacement interest rate swap agreement on
substantially identical terms, with a replacement swap counterparty that would
not cause a Collateralization Event (as defined in the Class A-3FL Swap
Agreement). If the costs attributable to entering into a replacement interest
rate swap agreement with respect to the Class A-3FL Certificates would exceed
the amount of any Swap Termination Fees received from the Class A-3FL Swap
Counterparty, a replacement interest rate swap agreement with respect to the
Class A-3FL Certificates shall not be entered into and any such proceeds will
instead be distributed, pro rata, to the Holders of the Class A-3FL Certificates
on the immediately succeeding Distribution Date as part of the Class A-3FL
Interest Distribution Amount for such Distribution Date. If any replacement swap
counterparty pays any fee in connection with the execution of any replacement
interest rate swap agreement in respect of the Class A-3FL Certificates with the
Trust, the Trustee shall distribute such fee: first, to the Class A-3FL Swap
Counterparty in respect of the terminated Class A-3FL Swap Agreement, up to the
amount of any termination payment owing to the terminated Class A-3FL Swap
Counterparty under, and in connection with the termination of, such Swap
Agreement, and such fee (or applicable portion thereof) shall be deemed to have
been distributed first to the Depositor as compensation to the Depositor under
this Agreement and then from the Depositor to the Class A-3FL Swap Counterparty
in respect of the terminated Class A-3FL Swap Agreement, and then, any
remainder, to the Depositor. Any expenses, costs and/or liabilities incurred by
the Trustee in connection with enforcing the Class A-3FL Swap Agreement shall be
payable and/or reimbursable solely out of indemnification payments made by Class
A-3FL Certificateholders.
Any Class A-3FL Distribution Conversion shall become permanent
following the determination by the Trustee (in the circumstances contemplated in
the third sentence of the preceding paragraph) or by the Holders or Certificate
Owners of Class A-3FL Certificates representing at least 25% of the Class
Principal Balance of the Class A-3FL Certificates not to enter into a
replacement interest rate swap agreement and distribution of any Swap
Termination Fees paid by the Class A-3FL Swap Counterparty to the Holders of the
Class A-3FL Certificates. Any Swap Default under, or termination of, the Class
A-3FL Swap Agreement and the consequent Class A-3FL Distribution Conversion
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change in the payment terms on the Class A-3FL
Certificates, including as a result of a Class A-3FL Distribution Conversion,
termination of a Class A-3FL Distribution Conversion,
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a Swap Default under the Class A-3FL Swap Agreement or the cure of a Swap
Default under the Class A-3FL Swap Agreement, the Trustee shall promptly notify
the Depository of the change in payment terms.
(f) Subject to Section 8.02(iii), the Trustee shall at all times
enforce the Trust's rights under the Class AN-FL Swap Agreement. In the event of
a Swap Default under the Class AN-FL Swap Agreement, the Trustee shall (i)
provide notice of such Swap Default on the date of such default to the Class
AN-FL Swap Counterparty and (ii) promptly provide written notice to the Holders
of the Class AN-FL Certificates and, subject to Section 8.02(iii), shall be
required to take such actions (following the expiration of any applicable grace
period specified in the Class AN-FL Swap Agreement), unless otherwise directed
in writing by the Holders or Certificate Owners of Class AN-FL Certificates
representing at least 25% of the Class Principal Balance of the Class AN-FL
Certificates, to enforce such rights of the Trust under the Class AN-FL Swap
Agreement as may be permitted by the terms thereof, including termination
thereof, and use any Swap Termination Fees received from the Class AN-FL Swap
Counterparty to enter into a replacement interest rate swap agreement on
substantially identical terms, with a replacement swap counterparty that would
not cause a Collateralization Event (as defined in the Class AN-FL Swap
Agreement). If the costs attributable to entering into a replacement interest
rate swap agreement with respect to the Class AN-FL Certificates would exceed
the amount of any Swap Termination Fees received from the Class AN-FL Swap
Counterparty, a replacement interest rate swap agreement with respect to the
Class AN-FL Certificates shall not be entered into and any such proceeds will
instead be distributed, pro rata, to the Holders of the Class AN-FL Certificates
on the immediately succeeding Distribution Date as part of the Class AN-FL
Interest Distribution Amount for such Distribution Date. If any replacement swap
counterparty pays any fee in connection with the execution of any replacement
interest rate swap agreement in respect of the Class AN-FL Certificates with the
Trust, the Trustee shall distribute such fee: first, to the Class AN-FL Swap
Counterparty in respect of the terminated Class AN-FL Swap Agreement, up to the
amount of any termination payment owing to the terminated Class AN-FL Swap
Counterparty under, and in connection with the termination of, such Swap
Agreement, and such fee (or applicable portion thereof) shall be deemed to have
been distributed first to the Depositor as compensation to the Depositor under
this Agreement and then from the Depositor to the Class AN-FL Swap Counterparty
in respect of the terminated Class AN-FL Swap Agreement, and then, any
remainder, to the Depositor. Any expenses, costs and/or liabilities incurred by
the Trustee in connection with enforcing the Class AN-FL Swap Agreement shall be
payable and/or reimbursable solely out of indemnification payments made by Class
AN-FL Certificateholders.
Any Class AN-FL Distribution Conversion shall become permanent
following the determination by the Trustee (in the circumstances contemplated in
the third sentence of the preceding paragraph) or by the Holders or Certificate
Owners of Class AN-FL Certificates representing at least 25% of the Class
Principal Balance of the Class AN-FL Certificates not to enter into a
replacement interest rate swap agreement and distribution of any Swap
Termination Fees paid by the Class AN-FL Swap Counterparty to the Holders of the
Class AN-FL Certificates. Any Swap Default under, or termination of, the Class
AN-FL Swap Agreement and the consequent Class AN-FL Distribution Conversion
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change in the payment terms on the Class AN-FL
Certificates, including as a result of a Class AN-FL Distribution Conversion,
termination of a Class AN-FL Distribution Conversion, a Swap Default under the
Class AN-FL Swap Agreement or the cure of a Swap Default under the Class AN-FL
Swap Agreement, the Trustee shall promptly notify the Depository of the change
in payment terms.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall (except as
otherwise provided in Section 9.01), based on, among other things, information
provided by the Master Servicer and the Special Servicer, apply amounts on
deposit in the Distribution Account, after payment of amounts payable from the
Distribution Account in accordance with Section 3.05(b)(ii) through (ix) and
deemed distributions from REMIC I pursuant to Section 4.01(i), for the following
purposes and in the following order of priority, in each case to the extent of
the remaining portion of the Loan Group 1 Available Distribution Amount and/or
the Loan Group 2 Available Distribution Amount, as applicable:
(i) to make distributions of interest to the Holders
of the Class A-1, Class A-2, Class A-3, Class A-3B, Class A-SB and Class
A-4 Certificates and to the Floating Rate Account with respect to the
Class A-3FL REMIC II Regular Interest, from the Loan Group 1 Available
Distribution Amount, in an amount equal to, and pro rata as among those
Classes of Senior Certificates and the Class A-3FL REMIC II Regular
Interest in accordance with, all Distributable Certificate Interest in
respect of each such Class of Senior Certificates and the Class A-3FL
REMIC II Regular Interest for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates; and concurrently,
to make distributions of interest to the Holders of the Class A-1A
Certificates, from the Loan Group 2 Available Distribution Amount in an
amount equal to all Distributable Certificate Interest in respect of the
Class A-1A Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates; and also concurrently,
to make distributions of interest to the Holders of the Class X
Certificates, from the Loan Group 1 Available Distribution Amount and/or
the Loan Group 2 Available Distribution Amount, in an amount equal to all
Distributable Certificate Interest in respect of the Class X Certificates
for such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates; provided, however, that if the Loan Group 1
Available Distribution Amount and/or the Loan Group 2 Available
Distribution Amount is insufficient to pay in full the Distributable
Certificate Interest payable as described above in respect of any Class of
Senior Certificates or the Class A-3FL REMIC II Regular Interest, as the
case may be, on such Distribution Date, then the entire Available
Distribution Amount shall be applied to make distributions of interest to
the Holders of the respective Classes of the Senior Certificates
(exclusive of the Class A-3FL Certificates) and the Class A-3FL REMIC II
Regular Interest, up to an amount equal to, and pro rata as among such
Classes of Senior Certificates and the Class A-3FL REMIC II Regular
Interest in accordance with, the Distributable Certificate Interest in
respect of each such Class of Senior Certificates and the Class A-3FL
REMIC II Regular Interest for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any;
(ii) to make distributions of principal, first, to the
Holders of the Class A-SB Certificates, until the related Class Principal
Balance is reduced to the Class A-SB Planned Principal Balance for such
Distribution Date, second, to the Holders of the Class A-1 Certificates
until the related Class Principal Balance is reduced to zero, third, to
the Holders of the Class A-2 Certificates until the related Class
Principal Balance is reduced to zero, fourth, to the Holders of the Class
A-3 Certificates and the Floating Rate Account with respect to the Class
A-3FL REMIC II Regular Interest, on a pro rata basis in accordance with
the respective Class Principal Balances thereof outstanding immediately
prior to such Distribution Date, until such related
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Class Principal Balances are reduced to zero, fifth, to the Holders of the
Class A-3B Certificates until the related Class Principal Balance is
reduced to zero, sixth, to the Holders of the Class A-SB Certificates
until the related Class Principal Balance (after taking into account any
distributions of principal made with respect to the Class A-SB
Certificates on such Distribution Date pursuant to subclause first of this
clause (ii)) is reduced to zero, and seventh, to the Holders of the Class
A-4 Certificates until the related Class Principal Balance is reduced to
zero, in that order, in an aggregate amount for sub-clauses first through
seventh above (not to exceed the aggregate of the Class Principal Balances
of those Classes of Senior Certificates and the Class A-3FL REMIC II
Regular Interest outstanding immediately prior to such Distribution Date)
equal to the Loan Group 1 Principal Distribution Amount for such
Distribution Date; and concurrently, to make distributions of principal to
the Holders of the Class A-1A Certificates, in an amount (not to exceed
the Class Principal Balance of the Class A-1A Certificates outstanding
immediately prior to such Distribution Date) equal to the Loan Group 2
Principal Distribution Amount for such Distribution Date; provided that,
if the portion of the Available Distribution Amount for such Distribution
Date remaining after the distributions of interest made pursuant to the
immediately preceding clause (i) is less than the Principal Distribution
Amount for such Distribution Date, then the Holders of the Class A-1,
Class A-2, Class A-3, Class A-3B, Class A-SB and Class A-4 Certificates
and Grantor Trust A-3FL with respect to the Class A-3FL REMIC II Regular
Interest shall have a prior right, relative to the Holders of the Class
A-1A Certificates, to receive their distributions of principal pursuant to
this clause (ii) out of the remaining portion of the Loan Group 1
Available Distribution Amount for such Distribution Date and the Holders
of the Class A-1A Certificates shall have a prior right, relative to the
Holders of the Class A-1, Class A-2, Class A-3, Class A-3B, Class A-SB and
Class A-4 Certificates and Grantor Trust A-3FL with respect to the Class
A-3FL REMIC II Regular Interest, to receive their distributions of
principal pursuant to this clause (ii) out of the remaining portion of the
Loan Group 2 Available Distribution Amount for such Distribution Date; and
provided, further, that, notwithstanding the foregoing, if the aggregate
of the Class Principal Balances of the Class AM, Class AJ, 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 P and Class Q Certificates and the Class AN-FL
REMIC II Regular Interest has previously been reduced to zero, then
distributions of principal will be made to the Holders of the Class A-1,
Class A-2, Class X-0, Xxxxx X-0X, Class A-SB, Class A-4 and Class A-1A
Certificates and to the Floating Rate Account with respect to the Class
A-3FL REMIC II Regular Interest pursuant to this clause (ii) up to an
amount equal to, and pro rata as among such Classes of Senior Certificates
and the Class A-3FL REMIC II Regular Interest in accordance with, the
respective Class Principal Balances thereof outstanding immediately prior
to such Distribution Date (and without regard to Loan Groups or the
Principal Distribution Amount for such Distribution Date);
(iii) after the Class Principal Balance of the Class
A-1A Certificates has been reduced to zero, to make distributions of
principal, first, to the Holders of the Class A-SB Certificates, until the
related Class Principal Balance (after taking into account any
distributions of principal made with respect to the Class A-SB
Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii)) is reduced to the Class A-SB Planned Principal
Balance for such Distribution Date, second, to the Holders of the Class
A-1 Certificates, until the related Class Principal Balance (after taking
into account any distributions of principal with respect to the Class A-1
Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii)) is reduced to zero, third, to the Holders of the
Class A-2 Certificates, until the related Class Principal Balance (after
taking into account any distributions of principal with respect to the
Class A-2 Certificates on such Distribution Date pursuant to the
immediately preceding
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clause (ii)) is reduced to zero, fourth, to the Holders of the Class A-3
Certificates and the Floating Rate Account with respect to the Class A-3FL
REMIC II Regular Interest, on a pro rata basis in accordance with the
respective Class Principal Balances thereof then outstanding, until such
related Class Principal Balances (after taking into account any
distributions of principal with respect to the Class A-3 Certificates and
the Class A-3FL REMIC II Regular Interest on such Distribution Date
pursuant to the immediately preceding clause (ii)) are reduced to zero,
fifth, to the Holders of the Class A-3B Certificates, until the related
Class Principal Balance (after taking into account any distributions of
principal made with respect to the Class A-3B Certificates on such
Distribution Date pursuant to the immediately preceding clause (ii)) is
reduced to zero, sixth, to the Holders of the Class A-SB Certificates,
until the related Class Principal Balance (after taking into account any
distributions of principal made with respect to the Class A-SB
Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii) and/or subclause first of this clause (iii)) is
reduced to zero, and seventh, to the Holders of the Class A-4
Certificates, until the related Class Principal Balance (after taking into
account any distributions of principal with respect to the Class A-4
Certificates on such Distribution Date pursuant to the immediately
preceding clause (ii)) is reduced to zero, in that order, in an aggregate
amount for subclauses first through seventh above (not to exceed the
aggregate of the Class Principal Balances of those Classes of Senior
Certificates and the Class A-3FL REMIC II Regular Interest outstanding
immediately prior to such Distribution Date, reduced by any distributions
of principal made with respect to those Classes of Senior Certificates and
the Class A-3FL REMIC II Regular Interest on such Distribution Date
pursuant to the immediately preceding clause (ii)) equal to the excess, if
any, of (A) the Loan Group 2 Principal Distribution Amount for such
Distribution Date, over (B) the distributions of principal made with
respect to the Class A-1A Certificates on such Distribution Date pursuant
to the immediately preceding clause (ii);
(iv) after the aggregate of the Class Principal
Balances of the Class A-1, Class A-2, Class A-3, Class A-3B, Class A-SB
and Class A-4 Certificates and the Class A-3FL REMIC II Regular Interest
has been reduced to zero, to make distributions of principal to the
Holders of the Class A-1A Certificates, in an amount (not to exceed the
Class Principal Balance of the Class A-1A Certificates outstanding
immediately prior to such Distribution Date, reduced by any distributions
of principal made with respect to the Class A-1A Certificates on such
Distribution Date pursuant to clause (ii) above) equal to the excess, if
any, of (A) the Loan Group 1 Principal Distribution Amount for such
Distribution Date, over (B) the aggregate distributions of principal made
with respect to the Class X-0, Xxxxx X-0, Class A-3, Class A-3B, Class
A-SB and/or Class A-4 Certificates and/or the Class A-3FL REMIC II Regular
Interest on such Distribution Date pursuant to clause (ii) above;
(v) to make distributions to the Holders of the Class
A-1, Class A-2, Class X-0, Xxxxx X-0X, Class A-SB, Class A-4 and Class
A-1A Certificates and to the Floating Rate Account with respect to the
Class A-3FL REMIC II Regular Interest, in an amount equal to, pro rata in
accordance with, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to each such
Class of Senior Certificates and the Class A-3FL REMIC II Regular
Interest, respectively, and not previously reimbursed;
(vi) to make distributions of interest to the Holders
of the Class AM Certificates in 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;
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(vii) after the Class Principal Balances of the Class
A-1, Class A-2, Class X-0, Xxxxx X-0X, Class A-SB, Class A-4 and Class
A-1A Certificates and the Class A-3FL REMIC II Regular Interest have been
reduced to zero, to make distributions of principal to the Holders of the
Class AM Certificates, in an amount (not to exceed the Class Principal
Balance of the Class AM 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 Sequential Pay
Certificates and/or to the Floating Rate Account with respect to the Class
A-3FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(viii) to make distributions to the Holders of the Class
AM Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class AM Certificates and not previously reimbursed;
(ix) to make distributions of interest to the Holders
of the Class AJ Certificates and to the Floating Rate Account with respect
to the Class AN-FL REMIC II Regular Interest in an amount equal to, and
pro rata as between the Class AJ Certificates and the Class AN-FL REMIC II
Regular Interest in accordance with, all Distributable Certificate
Interest in respect of such Class of Certificates and the Class AN-FL
REMIC II Regular Interest for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(x) after the Class Principal Balance of the Class AM
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class AJ Certificates and the Floating Rate Account
with respect to the Class AN-FL REMIC II Regular Interest, on a pro rata
basis in accordance with the respective Class Principal Balances thereof,
in an amount (not to exceed the aggregate of the Class Principal Balances
of the Class AJ Certificates and the Class AN-FL REMIC II Regular Interest
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 Sequential Pay Certificates and/or to the Floating
Rate Account with respect to the Class A-3FL REMIC II Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xi) to make distributions to the Holders of the Class
AJ Certificates and to the Floating Rate Account with respect to the Class
AN-FL REMIC II Regular Interest, in an amount equal to, pro rata in
accordance with, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
AJ Certificates and the Class AN-FL REMIC II Regular Interest and not
previously reimbursed;
(xii) to make distributions of interest to the Holders
of the Class B Certificates in 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;
(xiii) after the Class Principal Balances of the Class AJ
Certificates and the Class AN-FL REMIC II Regular Interest have been
reduced to zero, to make distributions of principal to the Holders of the
Class B Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B 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
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Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xiv) to make distributions to the Holders of the Class
B Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class B Certificates and not previously reimbursed;
(xv) to make distributions of interest to the Holders
of the Class C Certificates in 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;
(xvi) 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, in an amount (not to exceed
the Class Principal Balance of the Class C 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xvii) to make distributions to the Holders of the Class
C Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class C Certificates and not previously reimbursed;
(xviii) to make distributions of interest to the Holders
of the Class D Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xix) 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, in an amount (not to exceed
the Class Principal Balance of the Class D 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xx) to make distributions to the Holders of the Class
D Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class D Certificates and not previously reimbursed;
(xxi) to make distributions of interest to the Holders
of the Class E Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(xxii) 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, in an amount (not to exceed
the Class Principal Balance of the Class E 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxiii) to make distributions to the Holders of the Class
E Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class E Certificates and not previously reimbursed;
(xxiv) to make distributions of interest to the Holders
of the Class F Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxv) 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, in an amount (not to exceed
the Class Principal Balance of the Class F 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxvi) to make distributions to the Holders of the Class
F Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class F Certificates and not previously reimbursed;
(xxvii) to make distributions of interest to the Holders
of the Class G Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxviii) 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, in an amount (not to exceed
the Class Principal Balance of the Class G 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxix) to make distributions to the Holders of the Class
G Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class G Certificates and not previously reimbursed;
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(xxx) to make distributions of interest to the Holders
of Class H Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxi) 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, in an amount (not to exceed
the Class Principal Balance of the Class H 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxii) to make distributions to the Holders of the Class
H Certificates in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class H Certificates and not previously reimbursed;
(xxxiii) to make distributions of interest to the Holders
of the Class J Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxiv) 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, in an amount (not to exceed
the Class Principal Balance of the Class J 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xxxv) to make distributions to the Holders of the Class
J Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class J Certificates and not previously reimbursed;
(xxxvi) to make distributions of interest to the Holders
of the Class K Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxvii) 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, in an amount (not to exceed
the Class Principal Balance of the Class K 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
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(xxxviii) to make distributions to the Holders of the Class
K Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class K Certificates and not previously reimbursed;
(xxxix) to make distributions of interest to the Holders
of the Class L Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xl) 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, in an amount (not to exceed
the Class Principal Balance of the Class L 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xli) to make distributions to the Holders of the Class
L Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class L Certificates and not previously reimbursed;
(xlii) to make distributions of interest to the Holders
of the Class M Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xliii) 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, in an amount (not to exceed
the Class Principal Balance of the Class M 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xliv) to make distributions to the Holders of the Class
M Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class M Certificates and not previously reimbursed;
(xlv) to make distributions of interest to the Holders
of the Class N Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlvi) 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, in an amount (not to exceed
the Class Principal Balance of the Class N 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
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Holders of any other Class of Sequential Pay Certificates and/or to the
Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest and/or the Class AN-FL REMIC II Regular Interest pursuant to any
prior clause of this Section 4.01(a));
(xlvii) to make distributions to the Holders of the Class
N Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class N Certificates and not previously reimbursed;
(xlviii) to make distributions of interest to the Holders
of the Class P Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class P Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlix) 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 P Certificates, in an amount (not to exceed
the Class Principal Balance of the Class P 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(l) to make distributions to the Holders of the Class
P Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class P Certificates and not previously reimbursed;
(li) to make distributions of interest to the Holders
of the Class Q Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class Q Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(lii) after the Class Principal Balance of the Class P
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class Q Certificates, in an amount (not to exceed
the Class Principal Balance of the Class Q 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
Sequential Pay Certificates and/or to the Floating Rate Account with
respect to the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(liii) to make distributions to the Holders of the Class
Q Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class Q Certificates and not previously reimbursed;
(liv) to make distributions to the Holders of the Class
R-II Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(i), over (B)
the aggregate distributions made in respect of the Regular Certificates,
the Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II
Regular Interest on such Distribution Date pursuant to clauses (i) through
(liii) above; and
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(lv) to make distributions to the Holders of the Class
R-I Certificates of the excess, if any, of (A) the Available Distribution
Amount for such Distribution Date, over (B) the aggregate distributions
made in respect of the REMIC II Certificates, the Class A-3FL REMIC II
Regular Interest and the Class AN-FL REMIC II Regular Interest on such
Distribution Date pursuant to clauses (i) through (liv) above.
Distributions in reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates, the Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC
II Regular Interest shall not constitute distributions of principal and shall
not result in reduction of the related Class Principal Balance.
All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Class X Components, pro rata in
accordance with the respective amounts of Accrued Component Interest with
respect to the Class X Components for such Distribution Date, together with any
amounts thereof remaining unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account any amounts on deposit therein that represent
Prepayment Premiums and/or Yield Maintenance Charges actually collected on the
Trust Mortgage Loans and any Trust REO Loans during the related Collection
Period (excluding any portion of such Prepayment Premiums and/or Yield
Maintenance Charges applied pursuant to Section 4.01(k) to reimburse the Holders
of one or more Classes of Sequential Pay Certificates and/or the Floating Rate
Account with respect to the Class A-3FL REMIC II Regular Interest and/or the
Class AN-FL REMIC II Regular Interest in respect of Realized Losses and/or
Additional Trust Fund Expenses previously allocated thereto) and shall be deemed
to distribute such Prepayment Premiums and/or Yield Maintenance Charges (or
remaining portion thereof) from REMIC I to REMIC II in respect of REMIC I
Regular Interest LA-1 (whether or not such REMIC I Regular Interest has received
all distributions of interest and principal to which it is entitled), and then
shall distribute each such Prepayment Premium and/or Yield Maintenance Charge
(or remaining portion thereof), as additional yield, as follows:
(i) first, to the Holders of the respective Classes of
Sequential Pay Certificates (other than any Excluded Class thereof)
entitled to distributions of principal pursuant to Section 4.01(a) on such
Distribution Date with respect to the Loan Group that includes the prepaid
Trust Mortgage Loan or Trust REO Loan, as the case may be, and to the
Floating Rate Account with respect to the Class A-3FL REMIC II Regular
Interest and/or the Class AN-FL REMIC II Regular Interest (if, in either
such case, distributions of principal are being made with respect thereto
on such Distribution Date, pursuant to Section 4.01(a), with respect to
the Loan Group that includes the prepaid Trust Mortgage Loan or Trust REO
Loan, as the case may be), up to an amount equal to, and pro rata based
on, the Additional Yield and Prepayment Amount for each such Class of
Certificates, the Class A-3FL REMIC II Regular Interest (if applicable)
and/or the Class AN-FL REMIC II Regular Interest (if applicable) for such
Distribution Date with respect to the subject Prepayment Premium or Yield
Maintenance Charge, as the case may be; and
(ii) second, to the Holders of the Class X
Certificates, to the extent of any remaining portion of the subject Yield
Maintenance Charge or Prepayment Premium, as the case may be (excluding
any portion of such Prepayment Premium and/or Yield Maintenance Charge
applied pursuant to Section 4.01(k) to reimburse the Holders of one or
more Classes of Sequential Pay Certificates and/or the Floating Rate
Account with respect to the Class A-3FL
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REMIC II Regular Interest and/or the Class AN-FL REMIC II Regular Interest
in respect of Realized Losses and/or Additional Trust Fund Expenses
previously allocated thereto).
On each Distribution Date, the Trustee shall withdraw from the
Additional Interest Account any amounts that represent Additional Interest
actually collected during the related Collection Period on the Trust ARD Loans
and any successor Trust REO Loans with respect thereto and shall distribute such
amounts among the Holders of the Class Z Certificates pro rata in accordance
with their respective Percentage Interests of such Class.
(c) Subject to Section 3.29, on each Distribution Date, the
Trustee shall apply amounts on deposit in the Class A-3FL Sub-Account for the
following purposes and in the following order of priority, in each case to the
extent of the Class A-3FL Available Funds (exclusive of any portion thereof that
constitutes Yield Maintenance Charges and/or Prepayment Premiums) for such
Distribution Date:
(i) to make distributions of interest to the Holders
of the Class A-3FL Certificates, up to the Class A-3FL Interest
Distribution Amount for such Distribution Date;
(ii) to make distributions of principal to the Holders
of the Class A-3FL Certificates, in reduction of the Class Principal
Balance thereof, up to the Class A-3FL Principal Distribution Amount
for such Distribution Date, until such Class Principal Balance has
been reduced to zero;
(iii) to reimburse the Holders of the Class A-3FL
Certificates, until all Realized Losses and Additional Trust Fund
Expenses previously allocated to the Class A-3FL Certificates, but
not previously reimbursed, have been reimbursed in full; and
(iv) to make distributions to the Holders of the Class
A-3FL Certificates of any remaining amount.
For so long as the Class A-3FL Swap Agreement is in effect and there
is no continuing payment default thereunder on the part of the Class A-3FL Swap
Counterparty, all Prepayment Premiums and Yield Maintenance Charges allocable to
the Class A-3FL REMIC II Regular Interest shall be payable to the Class A-3FL
Swap Counterparty pursuant to the terms of the Class A-3FL Swap Agreement.
However, during the occurrence of a payment default on the part of the Class
A-3FL Swap Counterparty under the Class A-3FL Swap Agreement or if the Class
A-3FL Swap Agreement is terminated and a replacement Class A-3FL Swap Agreement
is not obtained, then all Prepayment Premiums and Yield Maintenance Charges
distributed to the Floating Rate Account with respect to the Class A-3FL REMIC
II Regular Interest shall be distributed by the Trustee to the Holders of the
Class A-3FL Certificates on the subject Distribution Date.
Subject to Section 3.29, on each Distribution Date, the Trustee
shall apply amounts on deposit in the Class AN-FL Sub-Account for the following
purposes and in the following order of priority, in each case to the extent of
the Class AN-FL Available Funds (exclusive of any portion thereof that
constitutes Yield Maintenance Charges and/or Prepayment Premiums) for such
Distribution Date:
(v) to make distributions of interest to the Holders
of the Class AN-FL Certificates, up to the Class AN-FL Interest
Distribution Amount for such Distribution Date;
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(vi) to make distributions of principal to the Holders
of the Class AN-FL Certificates, in reduction of the Class Principal
Balance thereof, up to the Class AN-FL Principal Distribution Amount
for such Distribution Date, until such Class Principal Balance has
been reduced to zero;
(vii) to reimburse the Holders of the Class AN-FL
Certificates, until all Realized Losses and Additional Trust Fund
Expenses previously allocated to the Class AN-FL Certificates, but
not previously reimbursed, have been reimbursed in full; and
(viii) to make distributions to the Holders of the Class
AN-FL Certificates of any remaining amount.
For so long as the Class AN-FL Swap Agreement is in effect and there
is no continuing payment default thereunder on the part of the Class AN-FL Swap
Counterparty, all Prepayment Premiums and Yield Maintenance Charges allocable to
the Class AN-FL REMIC II Regular Interest shall be payable to the Class AN-FL
Swap Counterparty pursuant to the terms of the Class AN-FL Swap Agreement.
However, during the occurrence of a payment default on the part of the Class
AN-FL Swap Counterparty under the Class AN-FL Swap Agreement or if the Class
AN-FL Swap Agreement is terminated and a replacement Class AN-FL Swap Agreement
is not obtained, then all Prepayment Premiums and Yield Maintenance Charges
distributed to the Floating Rate Account with respect to the Class AN-FL REMIC
II Regular Interest shall be distributed by the Trustee to the Holders of the
Class AN-FL Certificates on the subject Distribution Date.
(d) All distributions made with respect to each Class 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 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 Trustee with wiring
instructions no less than five Business Days prior to (or, in the case of the
initial Distribution Date, no later than) 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 Sequential Pay
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
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 Trustee was subsequently notified in writing. If such check
is returned to the Trustee, the Trustee, 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
Trustee shall be set aside by the Trustee 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 Trustee has not, after
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having taken such reasonable steps, located the related Holder by the second
anniversary of the initial sending of a check, the Trustee shall, subject to
applicable law, distribute the unclaimed funds to the Holders of the Class R-II
Certificates.
(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 (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor, the Master Servicer, the
Special Servicer or any Fiscal Agent shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law. The Trustee
and the Depositor shall perform their respective obligations under a Letter of
Representations among the Depositor, the Trustee and the Initial Depository
dated as of the Closing Date.
(f) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of 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 in
respect of amounts properly previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates) will be made on the
next Distribution Date, the Trustee shall, no later than five days after the
related Determination Date, mail to each Holder of record on such date of such
Class of Certificates a notice to the effect that:
(i) the Trustee 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 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
Trustee 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 Trustee, 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
Certificateholders following the first anniversary of the delivery of such
second notice to the non-
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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 pursuant
to this paragraph. If all of the Certificates shall not have been surrendered
for cancellation by the second anniversary of the delivery of the second notice,
the Trustee shall, subject to applicable law, distribute to the Holders of the
Class R-II Certificates all unclaimed funds and other assets which remain
subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal income tax withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Trustee reasonably believes are applicable under the Code. The
Certificate Registrar shall promptly provide the Trustee with any IRS Form W-9
or W-8 (including Form W-8ECI, W-8BEN or W-IMY) upon its receipt thereof. The
consent of Certificateholders shall not be required for such withholding. If the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal income
tax withholding requirements, the Trustee shall indicate the amount withheld to
such Certificateholders.
(i) All distributions of interest, principal and
reimbursements of previously allocated Realized Losses and Additional Trust Fund
Expenses made in respect of any Class of Sequential Pay Certificates (exclusive
of the Class A-3FL Certificates and the Class AN-FL Certificates), the Class
A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular Interest on
each Distribution Date pursuant to Section 4.01(a), 4.01(j) or 4.01(k) shall be
deemed to have first been distributed from REMIC I to REMIC II in respect of its
Corresponding REMIC I Regular Interest. All distributions made in respect of the
Class X Certificates on each Distribution Date pursuant to Section 4.01(a), and
allocable to any particular Class X Component in accordance with the last
paragraph of Section 4.01(a), shall be deemed to have first been distributed
from REMIC I to REMIC II in respect of such Class X Component's Corresponding
REMIC I Regular Interest. In each case, if such distribution on any such Class
of Regular Certificates, the Class A-3FL REMIC II Regular Interest or the Class
AN-FL REMIC II Regular Interest, as the case may be, was a distribution of
interest or principal or in reimbursement of previously allocated Realized
Losses and Additional Trust Fund Expenses in respect of such Class of Regular
Certificates, the Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC
II Regular Interest, as the case may be, then the corresponding distribution
deemed to be made on a REMIC I Regular Interest pursuant to either of the
preceding two sentences shall be deemed to also be a distribution of interest or
principal or in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses, as the case may be, in respect of such REMIC I
Regular Interest.
(j) On each Distribution Date, the Trustee shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Sequential Pay Certificates (other than the
Class A-3FL and Class AN-FL Certificates) and to reimburse the Floating Rate
Account with respect to the Class A-3FL REMIC II Regular Interest and the Class
AN-FL REMIC II Regular Interest (in the same order as such reimbursements would
be made pursuant to Section 4.01(a)) up to an amount equal to all Realized
Losses and Additional Trust Fund Expenses, if any, previously deemed allocated
to them and unreimbursed after application of the Available Distribution Amount
for such Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account
will not reduce the Class Principal Balance of any Class of Sequential Pay
Certificates, the Class A-3FL REMIC II Regular Interest and/or the Class AN-FL
REMIC II Regular Interest. Any amounts remaining in the Gain-on-Sale Reserve
Account after such distributions shall be applied to offset future Realized
Losses and Additional Trust Fund Expenses and, upon termination of the Trust
Fund, any amounts remaining in the Gain-on-Sale Reserve Account shall be
distributed to the Class R-I Certificateholders.
(k) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account an amount equal to any Prepayment Premium and/or Yield
Maintenance Charge that was
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received in respect of a Trust Specially Serviced Mortgage Loan during the
related Collection Period to the extent that Realized Losses and/or Additional
Trust Fund Expenses had been allocated to one or more Classes of Sequential Pay
Certificates (other than the Class A-3FL and Class AN-FL Certificates), the
Class A-3FL REMIC II Regular Interest and/or the Class AN-FL REMIC II Regular
Interest pursuant to Section 4.04 and had not been previously reimbursed, and
the Trustee shall distribute such amounts to reimburse the Holders of the
Sequential Pay Certificates (other than the Class A-3FL and Class AN-FL
Certificates) and to reimburse the Floating Rate Account with respect to the
Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular
Interest (in the same order as such reimbursements would be made pursuant to
Section 4.01(a)) up to an amount equal to all such Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to them and
remaining unreimbursed after application of the Available Distribution Amount
for such Distribution Date and the amounts on deposit in the Gain-on-Sale
Reserve Account. Any such amounts paid from the Distribution Account will not
reduce the Class Principal Balance of any Class of Sequential Pay Certificates,
the Class A-3FL REMIC II Regular Interest or the Class AN-FL REMIC II Regular
Interest.
SECTION 4.02. Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall make
available electronically via its Internet Website or, upon written request, by
first class mail, to each Certificateholder, each initial Certificate Owner and
(upon written request made to the Trustee) each subsequent Certificate Owner (as
identified to the reasonable satisfaction of the Trustee), the Depositor, the
Master Servicer, the Special Servicer, the Underwriters, each Rating Agency and
any other Person designated in writing by the Depositor, a statement (a
"Distribution Date Statement"), as to the distributions made on such
Distribution Date, based solely on information provided to it by the Master
Servicer and the Special Servicer. Each Distribution Date Statement shall be in
the form set forth on Exhibit B hereto and, in any event, shall set forth:
(i) the amount of the distribution on such
Distribution Date to the Holders of each Class of Sequential Pay
Certificates in reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution on such
Distribution Date to the Holders of each Class of Regular Certificates,
the Class A-3FL Certificates and/or the Class AN-FL Certificates allocable
to Distributable Certificate Interest, the Class A-3FL Interest
Distribution Amount and/or the Class AN-FL Interest Distribution Amount,
as the case may be;
(iii) the amount of the distribution on such
Distribution Date to the Holders of each Class of Regular Certificates,
the Class A-3FL Certificates and/or the Class AN-FL Certificates allocable
to Prepayment Premiums and/or Yield Maintenance Charges;
(iv) the amount of the distribution on such
Distribution Date to the Holders of each Class of Sequential Pay
Certificates in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses;
(v) 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), the
Available Distribution Amount for such Distribution Date and the
respective portions of such Available Distribution Amount attributable to
each Loan Group;
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(vi) (a) the aggregate amount of P&I Advances made with
respect to the entire Mortgage Pool, and made with respect to each Loan
Group, for such Distribution Date pursuant to Section 4.03(a), including,
without limitation, any amounts applied pursuant to Section 4.03(a)(ii),
and the aggregate amount of xxxxxxxxxxxx X&X Advances with respect to the
entire Mortgage Pool, and with respect to each Loan Group, that had been
outstanding at the close of business on the related Determination Date and
the aggregate amount of interest accrued and payable to the Master
Servicer, the Trustee or any Fiscal Agent in respect of such xxxxxxxxxxxx
X&X Advances in accordance with Section 4.03(d) as of the close of
business on the related Determination Date, (b) the aggregate amount of
Servicing Advances with respect to the entire Mortgage Pool, and with
respect to each Loan Group, as of the close of business on the related
Determination Date and (c) the aggregate amount of all Nonrecoverable
Advances with respect to the entire Mortgage Pool, and with respect to
each Loan Group, as of the close of business on the related Determination
Date;
(vii) the aggregate unpaid principal balance of the
Mortgage Pool and of each Loan Group outstanding as of the close of
business on the related Determination Date;
(viii) the aggregate Stated Principal Balance of the
Mortgage Pool and of each Loan Group outstanding immediately before and
immediately after such Distribution Date;
(ix) the number, aggregate principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Trust Mortgage Loans as of the close of business on the related
Determination Date;
(x) the number, aggregate unpaid principal balance (as
of the close of business on the related Determination Date) and aggregate
Stated Principal Balance (immediately after such Distribution Date) of the
Trust Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days,
(C) delinquent more than 89 days, (D) as to which foreclosure proceedings
have been commenced, and (E) to the actual knowledge of the Master
Servicer or Special Servicer, in bankruptcy proceedings;
(xi) as to each Trust Mortgage Loan referred to in the
preceding clause (x) above, (A) the loan number thereof, (B) the Stated
Principal Balance thereof immediately following such Distribution Date,
and (C) a brief description of any executed loan modification;
(xii) with respect to any Trust Mortgage Loan as to
which a Liquidation Event occurred during the related Collection Period
(other than a payment in full), (A) the loan number thereof, (B) 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 (C) the
amount of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any Trust 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;
(xiv) with respect to any Trust Mortgage Loan as to.
which an uncured and unresolved Breach or Document Defect that materially
and adversely affects the value of such Trust Mortgage Loan or the
interests of the Certificateholders, is alleged to exist, (A) the loan
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number thereof, (B) the unpaid principal balance thereof, (C) a brief
description of such Breach or Document Defect, as the case may be, and (D)
the status of such Breach or Document Defect, as the case may be,
including any actions known to the Trustee that are being taken by or on
behalf of the applicable Mortgage Loan Seller with respect thereto;
(xv) with respect to any Trust Mortgage Loan as to
which the related Mortgaged Property became an REO Property during the
related Collection Period, the loan number of such Trust Mortgage Loan and
the Stated Principal Balance of such Trust Mortgage Loan as of the related
date of acquisition;
(xvi) 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, the loan number of the
related Trust 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;
(xvii) with respect to any REO Property included in the
Trust Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the loan number of the related Trust
Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Final Recovery Determination
(separately identifying the portion thereof allocable to distributions on
the Certificates), and (C) the amount of any Realized Loss in respect of
the related Trust REO Loan in connection with such Final Recovery
Determination;
(xviii) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular Certificates, the
Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular
Interest, as well as the Class A-3FL Interest Distribution Amount and the
Class AN-FL Interest Distribution Amount, for such Distribution Date;
(xix) any unpaid Distributable Certificate Interest in
respect of each Class of Regular Certificates, the Class A-3FL REMIC II
Regular Interest and the Class AN-FL REMIC II Regular Interest,
respectively, as well as any unpaid portion of the Class A-3FL Interest
Distribution Amount and the Class AN-FL Interest Distribution Amount,
respectively, after giving effect to the distributions made on such
Distribution Date;
(xx) the Pass-Through Rate for each Class of Regular
Certificates, the Class A-3FL REMIC II Regular Interest, the Class AN-FL
REMIC II Regular Interest, the Class A-3FL Certificates and the Class
AN-FL Certificates, respectively, for such Distribution Date;
(xxi) the Principal Distribution Amount, the Loan Group
1 Principal Distribution Amount and the Loan Group 2 Principal
Distribution Amount for such Distribution Date, in each case, separately
identifying the respective components thereof (and, in the case of any
Principal Prepayment or other unscheduled collection of principal received
during the related Collection Period, the loan number for the related
Trust Mortgage Loan and the amount of such prepayment or other collection
of principal);
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(xxii) the aggregate of all Realized Losses incurred
during the related Collection Period and all Additional Trust Fund
Expenses incurred during the related Collection Period;
(xxiii) the aggregate of all Realized Losses and
Additional Trust Fund Expenses that were allocated on such Distribution
Date;
(xxiv) the Class Principal Balance and Class X Notional
Amount, as applicable, of each Class of Regular Certificates, the Class
A-3FL Certificates and the Class AN-FL Certificates, outstanding
immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of
Realized Losses and Additional Trust Fund Expenses on such Distribution
Date;
(xxv) the Certificate Factor for each Class of Regular
Certificates, the Class A-3FL Certificates and the Class AN-FL
Certificates, respectively, immediately following such Distribution Date;
(xxvi) the aggregate amount of interest on P&I Advances
in respect of the Mortgage Pool and in respect of each Loan Group paid to
the Master Servicer, the Trustee and any Fiscal Agent during the related
Collection Period in accordance with Section 4.03(d);
(xxvii) the aggregate amount of interest on Servicing
Advances in respect of the Mortgage Pool and in respect of each Loan Group
paid to the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent during the related Collection Period in accordance with
Section 3.03(d);
(xxviii) the aggregate amount of servicing compensation
(separately identifying the amount of each category of compensation) paid
to the Master Servicer and the Special Servicer during the related
Collection Period;
(xxix) the loan number for each Trust Required Appraisal
Mortgage Loan and any related Appraisal Reduction Amount as of the related
Determination Date;
(xxx) the original and then current credit support
levels for each Class of Regular Certificates, the Class A-3FL
Certificates and the Class AN-FL Certificates, respectively;
(xxxi) the original and then current ratings known to the
Trustee for each Class of Regular Certificates, the Class A-3FL
Certificates and the Class AN-FL Certificates, respectively;
(xxxii) the aggregate amount of Prepayment Premiums and
Yield Maintenance Charges collected during the related Collection Period;
(xxxiii) the value of any REO Property included in the
Trust Fund as of the end of the related Determination Date for such
Distribution Date, based on the most recent Appraisal or valuation;
(xxxiv) the amounts, if any, actually distributed with
respect to the Class Z Certificates, the Class R-I Certificates and the
Class R-II Certificates, respectively, on such Distribution Date;
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(xxxv) all payments to and from each Swap Counterparty
during the month of such Distribution Date;
(xxxvi) a brief description of any uncured Event of
Default known to the Trustee (to the extent not previously reported) and,
as determined and/or approved by the Depositor, any other information
necessary to satisfy the requirements of Item 1121(a) of Regulation AB
that can, in the Trustee's reasonable judgment, be included on the
Distribution Date Statement without undue difficulty; and
(xxxvii) if the significance percentage (within the meaning
of Item 1115 of Regulation AB) of the Class A-3FL Certificates or the
Class AN-FL Certificates is equal to or greater than 10%, whether such
significance percentage is (A) equal to or greater 10% but less than 20%
or (B) whether such significance percentage is equal to or in excess of
20%.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xvii), (xxviii),
(xxxiii) and (xxxv) above, insofar as the underlying information is solely
within the control of the Special Servicer, the Trustee and the Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer.
Each Distribution Date Statement shall identify the Distribution
Date to which it relates and the Record Date, the Interest Accrual Period, the
Determination Date and the Collection Period that correspond to such
Distribution Date.
The Trustee may conclusively rely on and shall not be responsible
absent manifest error for the content or accuracy of any information provided by
third parties for purposes of preparing the Distribution Date Statement and may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
On each Distribution Date, the Trustee shall make available via its
Internet Website the information specified in Section 3.15(b) to the Persons
specified therein. Absent manifest error, none of the Master Servicer or the
Special Servicer shall be responsible for the accuracy or completeness of any
information supplied to it by a Mortgagor or third party that is included in any
reports, statements, materials or information prepared or provided by the Master
Servicer or the Special Servicer, as applicable. The Trustee shall not be
responsible absent manifest error for the accuracy or completeness of any
information supplied to it for delivery pursuant to this Section. None of the
Trustee, the Master Servicer or the Special Servicer shall have any obligation
to verify the accuracy or completeness of any information provided by a
Mortgagor or third party.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items provided to Certificateholders pursuant to clauses
(i), (ii), (iii) and (iv) of the description of "Distribution Date Statement"
above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
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If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of, or provide
electronically or cause the provision electronically of, such statements,
reports and/or other written information to such Certificate Owner upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or facsimile from the Trustee; provided that the cost of such
overnight courier delivery or facsimile shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Trustee or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
(b) In the performance of its obligations set forth in Section
4.05 and its other duties hereunder, the Trustee may, absent bad faith,
conclusively rely on reports provided to it by the Master Servicer, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer.
SECTION 4.03. P&I Advances; Reimbursement of P&I Advances and
Servicing Advances.
(a) On or before 2:00 p.m. (New York City time) on each P&I
Advance Date, the Master Servicer shall (i) apply amounts in the Collection
Account received after the end of the related Collection Period or otherwise
held for future distribution to Certificateholders in subsequent months in
discharge of its obligation to make P&I Advances or (ii) subject to Section
4.03(c) below, remit from its own funds to the Trustee for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date. The Master Servicer
may also make P&I Advances in the form of any combination of clauses (i) and
(ii) above aggregating the total amount of P&I Advances to be made. Any amounts
held in the Collection Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Collection Account on or
before the next succeeding Determination 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 3:00 p.m.
(New York City time) on any P&I Advance Date, the Master Servicer shall not have
made any P&I Advance required to be made on such date pursuant to this Section
4.03(a) (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to the
facsimile number set forth in Section 11.05 (or such alternative number provided
by the Master Servicer to the Trustee in writing) as soon as possible, but in
any event before 4:00 p.m. (New York City time) on such P&I Advance Date. If the
Trustee does not receive the full amount of such P&I Advances by 11:00 a.m. (New
York City time) on the related Distribution Date, then, subject to Section
4.03(c), (i) the Trustee
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shall, no later than 12:00 p.m., or if the Trustee fails, any Fiscal Agent
shall, no later than 1:00 p.m. (New York City time), on such related
Distribution Date make the portion of such P&I Advances that was required to be,
but was not, made by the Master Servicer on such P&I Advance Date, and (ii) with
respect to the Master Servicer, the provisions of Sections 7.01 and 7.02 shall
apply.
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer, the Trustee or any Fiscal Agent in respect of the Mortgage Pool
for any Distribution Date shall, subject to Section 4.03(c) below, equal the
aggregate of all Periodic Payments (other than Balloon Payments) and any Assumed
Periodic Payments, net of related Master Servicing Fees, in respect of the Trust
Mortgage Loans (including, without limitation, Trust Balloon Loans delinquent as
to their respective Balloon Payments) and any Trust REO Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected (including as net income from REO Properties) as of the
close of business on the related Determination Date; provided that: (x) if the
Periodic Payment on any Trust Mortgage Loan has been reduced in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, or if the final maturity on any Trust Mortgage Loan
shall be extended in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.20, and the Periodic
Payment due and owing during the extension period is less than the related
Assumed Periodic Payment, then the Master Servicer, the Trustee or any Fiscal
Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the
Periodic Payment due and owing after taking into account such reduction (net of
related Master Servicing Fees) in the event of subsequent delinquencies thereon;
and (y) if any Trust Mortgage Loan or Trust REO Loan is a Required Appraisal
Mortgage Loan as to which it is determined that an Appraisal Reduction Amount
exists, then, with respect to the Distribution Date immediately following the
date of such determination and with respect to each subsequent Distribution Date
for so long as such Appraisal Reduction Amount exists, the Master Servicer, the
Trustee or any Fiscal Agent will be required in the event of subsequent
delinquencies to advance in respect of such Trust Mortgage Loan or Trust REO
Loan, as the case may be, only an amount equal to the sum of (A) the interest
portion of the P&I Advance required to be made equal to the product of (1) the
amount of the interest portion of the P&I Advance for that Trust Mortgage Loan
or Trust REO Loan, as the case may be, for the related Distribution Date without
regard to this sentence, and (2) a fraction, expressed as a percentage, the
numerator of which is equal to the Stated Principal Balance of that Trust
Mortgage Loan or Trust REO Loan, as the case may be, immediately prior to the
related Distribution Date, net of the related Appraisal Reduction Amount, if
any, and the denominator of which is equal to the Stated Principal Balance of
that Trust Mortgage Loan or Trust REO Loan, as the case may be, immediately
prior to the related Distribution Date, and (B) the amount of the principal
portion of the P&I Advance that would otherwise be required without regard to
this clause (y). In the case of each A-Note Trust Mortgage Loan or any successor
Trust REO Loan with respect thereto, the reference to "Appraisal Reduction
Amount" in clause (y) of the proviso to the preceding sentence means the portion
of any Appraisal Reduction Amount with respect to the related Loan Combination
that is allocable, in accordance with the definition of "Appraisal Reduction
Amount", to such A-Note Trust Mortgage Loan or any successor Trust REO Loan with
respect thereto, as the case may be.
(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 the Master
Servicer or Special Servicer that a prior P&I Advance (or, assuming that it was
still outstanding, any Unliquidated Advance in respect thereof) that has been
made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance,
if made, would
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constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered to the Trustee, any Fiscal Agent and the Depositor on or
before the related P&I Advance Date, setting forth the basis for such
determination, together with any other information, including Appraisals (the
cost of which may be paid out of the Collection Account pursuant to Section
3.05(a)) (or, if no such Appraisal has been performed pursuant to this Section
4.03(c), a copy of an Appraisal of the related Mortgaged Property performed
within the twelve months preceding such determination), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties, engineers' reports, environmental surveys and any
similar reports that the Master Servicer may have obtained consistent with the
Servicing Standard and at the expense of the Trust Fund, that support such
determination by the Master Servicer. As soon as practical after making such
determination, the Special Servicer shall report to the Master Servicer, the
Trustee and any Fiscal Agent, the Special Servicer's determination that any P&I
Advance made with respect to any previous Distribution Date or required to be
made with respect to the next following Distribution Date with respect to any
Trust Specially Serviced Mortgage Loan or Trust REO Loan is a Nonrecoverable P&I
Advance. The Master Servicer, the Trustee and any Fiscal Agent shall act in
accordance with such determination and shall be entitled to conclusively rely on
such determination. The Trustee and any Fiscal Agent shall be entitled to rely,
conclusively, on any determination by the Master Servicer that a P&I Advance, if
made, would be a Nonrecoverable Advance (and the Trustee and any Fiscal Agent)
shall rely on the Master Servicer's determination that the P&I Advance would be
a Nonrecoverable Advance if the Trustee or any Fiscal Agent determines that it
does not have sufficient time to make such determination); provided, however,
that if the Master Servicer has failed to make a P&I Advance for reasons other
than a determination by the Master Servicer or the Special Servicer that such
P&I Advance would be a Nonrecoverable Advance, the Trustee or any Fiscal Agent
shall make such Advance within the time periods required by Section 4.03(a)
unless the Trustee or any Fiscal Agent, as the case may be, in good faith makes
a determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable Advance. The Special Servicer, in determining
whether or not a P&I Advance previously made is, or a proposed P&I Advance, if
made, would be, a Nonrecoverable Advance, shall be subject to the standards
applicable to the Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer,
the Trustee or any Fiscal Agent of any P&I Advance out of the Collection Account
pursuant to Section 3.05(a), subject to the following sentence, the Master
Servicer shall be entitled to pay itself, the Trustee or any Fiscal Agent, as
the case may be, out of any amounts then on deposit in the Collection Account,
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such P&I Advance (to the extent made with its own funds) from the date
made to but not including the date of reimbursement, such interest to be payable
first out of Default Charges received on the related Trust Mortgage Loan or
Trust REO Loan during the Collection Period in which such reimbursement is made,
then from general collections on the Trust Mortgage Loans then on deposit in the
Collection Account; provided, however, that no interest shall accrue on any P&I
Advance made with respect to a Trust Mortgage Loan if the related Periodic
Payment is received on or prior to the Due Date of such Trust Mortgage Loan,
prior to the expiration of any applicable grace period or prior to the related
P&I Advance Date; and provided, further, that, if such P&I Advance was made with
respect to a Trust Mortgage Loan that is part of a Loan Combination or any
successor Trust REO Loan with respect thereto, then such interest on such P&I
Advance shall first be payable out of amounts on deposit in the related Loan
Combination Custodial Account in accordance with Section 3.05(e). Subject to
Section 4.03(f), the Master Servicer shall reimburse itself, the Trustee or any
Fiscal Agent, for any outstanding P&I Advance made thereby as soon as
practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to
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which the corresponding Late Collection was received by the Master Servicer on
or prior to the related P&I Advance Date.
(e) In no event shall the Master Servicer, the Trustee or any
Fiscal Agent make a P&I Advance with respect to any Non-Trust Loan.
(f) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections deposited
in the Collection Account, the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, at its own option, instead of obtaining
reimbursement for the remaining amount of such Nonrecoverable Advance
immediately, may elect to refrain from obtaining such reimbursement for such
portion of the Nonrecoverable Advance during the one-month Collection Period
ending on the then-current Determination Date. If any of the Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent makes such an election at
its sole option to defer reimbursement with respect to all or a portion of a
Nonrecoverable Advance (together with interest thereon), then such
Nonrecoverable Advance (together with interest thereon) or portion thereof shall
continue to be fully reimbursable in the subsequent Collection Period (subject,
again, to the same sole option to defer; it is acknowledged that, in such a
subsequent period, such Nonrecoverable Advance shall again be payable first from
principal collections as described above prior to payment from other
collections). In connection with a potential election by any of the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent to refrain from
the reimbursement of a particular Nonrecoverable Advance or portion thereof
during the one-month Collection Period ending on the related Determination Date
for any Distribution Date, the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, shall further be authorized to
wait for principal collections to be received before making its determination of
whether to refrain from the reimbursement of a particular Nonrecoverable Advance
or portion thereof until the end of such Collection Period. 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 or to comply with the terms of
this subsection and the other provisions of this Agreement that apply once such
an election, if any, has been made. Any election by any of the Master Servicer,
the Special Servicer, the Trustee or any Fiscal Agent to refrain from
reimbursing itself for any Nonrecoverable Advance (together with interest
thereon) or portion thereof with respect to any Collection Period shall not be
construed to impose on any of the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, any obligation to make such an
election (or any entitlement in favor of any Certificateholder or any other
Person to such an election) with respect to any subsequent Collection Period or
to constitute a waiver or limitation on the right of the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent, as the case may be, to
otherwise be reimbursed for such Nonrecoverable Advance (together with interest
thereon). Any such election by any of the Master Servicer, the Special Servicer,
the Trustee or any Fiscal Agent shall not be construed to impose any duty on the
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 refrain 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 interest on such
Nonrecoverable Advance for the period prior to the actual reimbursement of such
Nonrecoverable Advance. None of the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent or the other parties to this Agreement shall have any
liability to one another or to any of the Certificateholders 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, and any such election shall not, with respect to the Master
Servicer or the Special Servicer, constitute a violation of the Servicing
Standard nor, with respect to the Trustee
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or any Fiscal Agent, constitute a violation of any fiduciary duty to the
Certificateholders or any contractual duty under this Agreement. Nothing herein
shall give the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent the right to defer reimbursement of a Nonrecoverable Advance to the extent
that principal collections then available in the Collection Account are
sufficient to reimburse such Nonrecoverable Advances pursuant to Section
3.05(a)(vii).
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following all distributions to
be made on such date pursuant to Section 4.01, the Trustee shall allocate to the
respective Classes of Sequential Pay Certificates (exclusive of the Class A-3FL
Certificates and the Class AN-FL Certificates), the Class A-3FL REMIC II Regular
Interest and the Class AN-FL REMIC II Regular Interest as follows the aggregate
of all Realized Losses and Additional Trust Fund Expenses that were incurred at
any time following the Cut-off Date through the end of the related Collection
Period and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate of the Class Principal Balances of the Sequential Pay Certificates
(exclusive of the Class A-3FL Certificates and the Class AN-FL Certificates),
the Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular
Interest as of such Distribution Date (after taking into account all of the
distributions made on such Distribution Date pursuant to Section 4.01), exceeds
(ii) the aggregate Stated Principal Balance of, and any Unliquidated Advances
with respect to, the Mortgage Pool that will be outstanding immediately
following such Distribution Date: first, sequentially, to the Class Q
Certificates, the Class P Certificates, the Class N Certificates, the Class M
Certificates, the Class L Certificates, the Class K Certificates, the Class J
Certificates, the Class H Certificates, the Class G Certificates, the Class F
Certificates, the Class E Certificates, the Class D Certificates, the Class C
Certificates and the Class B Certificates, in that order, in each case until the
remaining Class Principal Balance thereof is reduced to zero; second, pro rata
(based on remaining Class Principal Balances) to the Class AJ Certificates and
the Class AN-FL REMIC II Regular Interest, until the respective Class Principal
Balances thereof are reduced to zero; third, to the Class AM Certificates, until
the remaining Class Principal Balance thereof has been reduced to zero; and
last, pro rata (based on remaining Class Principal Balances) to the Class A-1,
Class A-2, Class X-0, Xxxxx X-0X, Class A-SB, Class A-4 and Class A-1A
Certificates and the Class A-3FL REMIC II Regular Interest, until the respective
Class Principal Balances thereof are reduced to zero. Any Realized Losses and
Additional Trust Fund Expenses allocated to the Class A-3FL REMIC II Regular
Interest shall, in turn, be deemed allocated to the Class A-3FL Certificates.
Any Realized Losses and Additional Trust Fund Expenses allocated to the Class
AN-FL REMIC II Regular Interest shall, in turn, be deemed allocated to the Class
AN-FL Certificates. Any allocation of Realized Losses and Additional Trust Fund
Expenses to a Class of Sequential Pay Certificates, the Class A-3FL REMIC II
Regular Interest and the Class AN-FL REMIC II Regular Interest shall be made by
reducing the Class Principal Balance thereof by the amount so allocated. All
Realized Losses and Additional Trust Fund Expenses, if any, allocated to a Class
of Sequential Pay Certificates shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. All Realized Losses and Additional Trust Fund Expenses, if any, that
have not been allocated to the Sequential Pay Certificates (exclusive of the
Class A-3FL and Class AN-FL Certificates), the Class A-3FL REMIC II Regular
Interest and/or the Class AN-FL REMIC II Regular Interest as of the Distribution
Date on which the aggregate of the Class Principal Balances of the Sequential
Pay Certificates (exclusive of the Class A-3FL and Class AN-FL Certificates),
the Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC II Regular
Interest has been reduced to zero, shall be deemed allocated to the Residual
Certificates.
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If and to the extent any Nonrecoverable Advances (and/or interest
thereon) that were reimbursed from principal collections on the Mortgage Pool
and previously resulted in a reduction of the Principal Distribution Amount are
subsequently recovered on the related Trust Mortgage Loan or Trust REO Loan,
then, on the Distribution Date immediately following the Collection Period in
which such recovery occurs, the Class Principal Balances of the respective
Classes of Sequential Pay Certificates (exclusive of the Class A-3FL and Class
AN-FL Certificates), the Class A-3FL REMIC II Regular Interest and/or the Class
AN-FL REMIC II Regular Interest shall be increased, in the reverse order from
which Realized Losses and Additional Trust Fund Expenses are allocated pursuant
to Section 4.04(a), by the amount of any such recoveries that are included in
the Principal Distribution Amount for the current Distribution Date; provided,
however, that, in any case, the Class Principal Balance of any Class of
Sequential Pay Certificates (exclusive of the Class A-3FL Certificates and the
Class AN-FL Certificates), the Class A-3FL REMIC II Regular Interest and the
Class AN-FL REMIC II Regular Interest shall in no event be increased by more
than the amount of unreimbursed Realized Losses and Additional Trust Fund
Expenses previously allocated thereto (which unreimbursed Realized Losses and
Additional Trust Fund Expenses shall be reduced by the amount of the increase in
such Class Principal Balance); and provided, further, that the aggregate
increase in the Class Principal Balances of the respective Classes of the
Sequential Pay Certificates (exclusive of the Class A-3FL Certificates and the
Class AN-FL Certificates), the Class A-3FL REMIC II Regular Interest and the
Class AN-FL REMIC II Regular Interest on any Distribution Date shall not exceed
the excess, if any, of (1) the aggregate Stated Principal Balance of, and all
Unliquidated Advances with respect to, the Mortgage Pool that will be
outstanding immediately following such Distribution Date, over (2) the aggregate
of the Class Principal Balances of the respective Classes of the Sequential Pay
Certificates (exclusive of the Class A-3FL Certificates and the Class AN-FL
Certificates), the Class A-3FL REMIC II Regular Interest and the Class AN-FL
REMIC II Regular Interest outstanding immediately following the distributions to
be made on such Distribution Date, but prior to any such increase in any of
those Class Principal Balances. If the Class Principal Balance of any Class of
Sequential Pay Certificates (exclusive of the Class A-3FL Certificates and the
Class AN-FL Certificates), the Class A-3FL REMIC II Regular Interest or the
Class AN-FL REMIC II Regular Interest is so increased, the amount of
unreimbursed Realized Losses and/or Additional Trust Fund Expenses considered to
be allocated to such Class shall be decreased by such amount.
If the Class Principal Balance of any Class of Sequential Pay
Certificates (exclusive of the Class A-3FL Certificates and the Class AN-FL
Certificates), the Class A-3FL REMIC II Regular Interest or the Class AN-FL
REMIC II Regular Interest is reduced on any Distribution Date pursuant to the
first paragraph of Section 4.04(a), then the REMIC I Principal Balance of its
Corresponding REMIC I Regular Interest shall be deemed to have first been
reduced by the exact same amount.
To the extent the Class Principal Balance of a Class of Sequential
Pay Certificates (exclusive of the Class A-3FL Certificates and the Class AN-FL
Certificates), the Class A-3FL REMIC II Regular Interest or the Class AN-FL
REMIC II Regular Interest is increased pursuant to the second paragraph of
Section 4.04(a), the REMIC I Principal Balance of its Corresponding REMIC I
Regular Interest shall be increased by the exact same amount.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01, Section
5.02(d) and Article IX and the actual and deemed allocations of Realized Losses,
Additional Trust Fund Expenses and other items to be made pursuant to Section
4.04. The Trustee shall calculate the Available
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Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement, and the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Special Servicer or Master Servicer. The calculations by
the Trustee of such amounts 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 X-0, X-0, X-0, X-0, X-0, A-7 and A-8, as
applicable; 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 the Sequential Pay Certificates and the Class X Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Sequential Pay Certificates and the Class X 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 not less than $25,000 in the case of the Registered Certificates
and not less than $100,000 in the case of Non-Registered Certificates (other
than the Residual Certificates and the Class Z Certificates), and in each such
case in integral multiples of $1 in excess thereof. The Class R-I and Class R-II
Certificates will be issuable in minimum Percentage Interests of 10%. The Class
Z Certificates shall have no minimum denomination and shall be represented by a
single Definitive Certificate.
(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 (located as of the Closing
Date at LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services
Group--Xxxxxxx Xxxxx Mortgage Investors Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-1) shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. The Trustee
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
Depositor, the Master Servicer, the Special Servicer and (if the Trustee is not
the Certificate Registrar) the Trustee, any other
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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 Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master Servicer and
the Special Servicer shall 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.
Upon written request of any Certificateholder made for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Certificate Registrar shall promptly furnish such
Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(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 state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
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, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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 E-1
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached hereto either as Exhibit E-2A or, except in
the case of the Class R-I, Class R-II or Class Z Certificates, as Exhibit E-2B;
or (ii) an Opinion of Counsel satisfactory to the Trustee to the effect that the
prospective Transferee is a Qualified Institutional Buyer or, except in the case
of the Class R-I, Class R-II or Class Z Certificates, an Institutional
Accredited Investor, 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, the Master Servicer, the Special Servicer, the
REMIC 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.
No beneficial interest in the Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is not a Qualified Institutional Buyer. 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, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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
E-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. If any Transferee of an interest
in the Rule 144A Global Certificate for any Class of
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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
E-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 to any Non-United States Securities Person who takes delivery
in the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates, provided that the Certificate Owner desiring to
effect such Transfer (i) complies with the requirements for Transfers of
interests in such Regulation S Global Certificate set forth in the following
paragraph and (ii) delivers or causes to be delivered to the Certificate
Registrar and the Trustee (A) a certificate from such Certificate Owner
confirming its ownership of the beneficial interests in the subject Class of
Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate to be obtained by such Certificate Owner from its prospective
Transferee in accordance with the second sentence of the following paragraph and
(C) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee,
as transfer agent for the Depository, to approve the debit of the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and approve the credit of 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 subject Class of
Book-Entry Non-Registered Certificates to be transferred. Upon delivery to the
Certificate Registrar and the Trustee of such certifications and such orders and
instructions, the Trustee, 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 subject Class of Book-Entry Non-Registered
Certificates, and increase the denomination of the Regulation S Global
Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
No beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates may be held by any Person
that is a United States Securities Person. Any Certificate Owner desiring to
effect any Transfer of a beneficial interest in the Regulation S Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
required to obtain from such Certificate Owner's prospective Transferee a
certificate substantially in the form set forth in Exhibit E-2D hereto to the
effect that such Transferee is not a United States Securities Person. If any
Transferee of an interest in the Regulation S Global Certificate for any Class
of Book-Entry Non-Registered Certificates does not, in connection with the
subject Transfer, deliver to the Transferor 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 E-2D hereto are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third paragraph of this Section 5.02(b) and (ii) delivers or causes to be
delivered to the Certificate Registrar and the Trustee (A) a certificate from
such Certificate Owner confirming its ownership of the beneficial interests in
the subject Class of Book-Entry Non-Registered Certificates to be transferred,
(B) a copy of the certificate or Opinion of Counsel to be obtained by such
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Certificate Owner from its prospective Transferee in accordance with the second
sentence of the third paragraph of this Section 5.02(b) and (C) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Trustee 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 the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar and the Trustee of such certification(s) and/or Opinion of Counsel and
such orders and instructions, the Trustee, 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 the subject Class of Book-Entry
Non-Registered Certificates, and increase the denomination of the Rule 144A
Global Certificate for such Class of Certificates, by the denomination of the
beneficial interest in such Class of Certificates specified in such orders and
instructions.
Also notwithstanding the foregoing, any interest in a 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 Global Certificate upon delivery to the Certificate Registrar and the
Trustee 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 Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Global Certificate. Upon
delivery to the Certificate Registrar and the Trustee of the certifications
and/or opinions contemplated by the second paragraph of this Section 5.02(b),
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the subject Global Certificate by
the denomination of the transferred interests in such Global Certificate, and
shall 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.
None of the Depositor, the Trustee 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 Initial Purchasers, the Trustee,
any Fiscal Agent, the Master Servicer, the Special Servicer, the REMIC
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 (i) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code or any other federal, state, local or foreign
law ("Similar Law") that is substantially similar to Section 405 or 407 of ERISA
or Section 4975 of the Code (each, a "Plan"), or (ii) 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
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interest therein 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 Similar
Law or would result in the imposition of an excise tax under Section 4975 of the
Code. The foregoing sentence notwithstanding, no Transfer of the Class Z, Class
R-I and R-II Certificates shall be made to a Plan or to a 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. 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, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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, one of the following: (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, except in the case of the Class Z, Class R-I and Class R-II
Certificates, 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 and 407 of ERISA and
the excise taxes imposed on such prohibited transactions by Section 4975 of the
Code, by reason of Sections I and III of Prohibited Transaction Class Exemption
95-60; or (iii) alternatively, but only in the case of a Non-Registered
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the 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 Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any Fiscal
Agent, any Exemption-Favored Party, a Swap Counterparty or any Mortgagor with
respect to Trust Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Trust 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 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) alternatively,
except in the case of the Class R-I and Class R-II Certificates, a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee or such Certificate Owner, as the case may be, 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. It is hereby acknowledged that the forms of
certification attached hereto as Exhibit F-1 (in the case of Definitive
Non-Registered Certificates) and Exhibit F-2 (in the case of ownership interests
in Book-Entry Non-Registered Certificates) are acceptable for purposes of the
preceding sentence. 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
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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 is exempt from the prohibited
transaction provisions of Sections 406 and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Section 4975 of the Code.
For so long as a Class A-3FL Distribution Conversion has not
occurred and become permanent, any Transferee of a Class A-3FL Certificate 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 any
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 such
interest herein by such Transferee is eligible for the exemptive relief
available under an Investor-Based Exemption.
In addition to the certification required pursuant to clause (iii)
of the second preceding paragraph if the Class AN-FL Certificates are Investment
Grade Certificates that are being acquired by or on behalf of a Plan in reliance
on the Exemption, then for so long as a Class AN-FL Distribution Conversion has
not occurred and become permanent, the Certificate Registrar shall refuse to
register the Transfer of a Class AN-FL Certificate unless it has received from
the prospective Transferee, and, if such Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, a certification to the
effect that the purchase and holding of such Certificate or an interest therein
by such Plan is eligible for the exemptive relief available under an
Investor-Based Exemption. If any Transferee of a Class AN-FL Certificate or any
interest therein does not, in connection with the subject Transfer, deliver to
the Certificate Registrar (if such Certificate constitutes a Definitive
Certificate) or the related Transferor (if such Certificate constitutes a Global
Certificate) a certification as required by the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that the purchase
and holding of such Class AN-FL Certificate or such interest therein by such
Transferee is eligible for the exemptive relief available under an
Investor-Based Exemption.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under
clause (ii)(A) below to deliver payments to a Person other than such
Person and to have irrevocably authorized the Trustee 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 Residual Certificate are expressly subject to
the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a
Permitted Transferee and shall promptly notify the
REMIC Administrator and the Trustee 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 Residual Certificate, the
Certificate Registrar shall require delivery to it,
and shall not register the Transfer of any Residual
Certificate until its receipt, of an affidavit and
agreement substantially in the form attached hereto
as Exhibit G-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
Residual Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in
a Residual Certificate, it will endeavor to remain a
Permitted Transferee and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of either the
Trustee or the Certificate Registrar has actual
knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1)
to require a Transfer Affidavit and Agreement from
any prospective Transferee to whom such Person
attempts to Transfer its Ownership Interest in such
Residual Certificate and (2) not to Transfer its
Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a
certificate substantially in the form attached
hereto as Exhibit G-2 stating that, among other
things, it has no
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actual knowledge that such prospective Transferee
is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing
such Ownership Interest, agrees to give the REMIC
Administrator and the Trustee 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 Residual Certificate, if it
is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
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 Residual Certificate. None of the Depositor, the Trustee or the
Certificate Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 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
Residual Certificate in violation of the restrictions in this Section
5.02(d), then, to the extent that the retroactive restoration of the
rights of the preceding Holder of such Residual Certificate as described
in clause (ii)(A) above shall be invalid, illegal or unenforceable, the
Trustee shall have the right but not the obligation, to cause the Transfer
of such Residual Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee shall not
be liable to any Person having an Ownership Interest in such Residual
Certificate as a result of the Trustee's exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Trustee. Such
Permitted Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The REMIC Administrator shall make available to
the Internal Revenue Service and to those Persons specified by the REMIC
Provisions all information furnished to it by the other parties hereto
that is necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual Certificate to any Person
who is 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 Residual Certificate and (B) as
a result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in
a Residual Certificate having as among its record holders at any time any
Person which is a Disqualified Organization, and each of the other parties
hereto shall furnish to the REMIC Administrator all information in its
possession necessary for the REMIC Administrator to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator for
providing such information thereto pursuant to this subsection (d)(iii)
and Section 10.01(g)(i).
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(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 Trustee and the REMIC
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 Trustee and the REMIC
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 expense of the Trustee, the REMIC Administrator
or the Trust Fund), to the effect that doing so will
not (1) cause REMIC I or REMIC II to cease to
qualify as a REMIC or be subject to an entity-level
tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted
Transferee, or (2) cause a Person other than the
prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a
Residual 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 Trustee (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 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 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.
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(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) Upon request, the Certificate Registrar shall provide to
the Master Servicer, the Special Servicer and the Depositor notice of each
transfer of a Certificate and shall provide to each such Person with an updated
copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Regular Certificates, the Class A-3FL
Certificates and the Class AN-FL Certificates shall initially be issued as one
or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.03(c) and Section 5.02(b), 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 the book-entry facilities of the Depository
and, except as provided in Section 5.03(c) and Section 5.02(b), shall not be
entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. The Class X, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P
and Class Q 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 Trustee as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Class X, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P
and Class Q Certificates 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 Trustee 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. Each
Certificate Owner is deemed, by virtue of its acquisition of an Ownership
Interest in the applicable Class of Book-Entry Certificates, to agree to comply
with the transfer requirements provided for in Section 5.02.
(b) The Trustee, the Master Servicer, the Special Servicer,
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. 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 Trustee 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.
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(c) If (i)(A) the Depositor advises 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 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
Servicer, the Special Servicer, 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 Trustee 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 or any
Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
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 Trustee 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 Trustee 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
Trustee 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
Trustee 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 Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and may treat the person in whose name each Certificate is registered as of
the relevant date of determination as owner of such Certificate for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
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Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor
or Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation 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 Trust Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which, in the case of the
Master Servicer or the Special Servicer, may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business (which, in the case of the Master Servicer or
the Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the 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 the Master Servicer or the Special
Servicer unless (i) as evidenced in writing by the Rating Agencies, such
succession will not result in an Adverse Rating Event and (ii) such successor or
surviving Person makes the applicable representations and warranties set forth
in Section 3.23.
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer, the Special Servicer and
Others.
(a) None of the Depositor, the Master Servicer, the Special
Servicer nor any of the Affiliates, directors, partners, members, managers,
shareholders, officers, employees or agents of any of them shall be under any
liability to the Trust Fund, the Underwriters, the parties hereto, the
Certificateholders or any other Person for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer nor any of the Affiliates,
directors, partners, members, managers, shareholders, officers, employees or
agents of any of them against any liability to the Trust Fund, the Trustee, the
Certificateholders or any other Person for the breach of warranties or
representations made herein by such party, 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 willful misfeasance, bad
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faith or negligence in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties. The Depositor, the Master
Servicer, the Special Servicer and any director, officer, employee or agent of
the Depositor, the Master Servicer or the Special Servicer may rely in good
faith on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder.
The Depositor, the Master Servicer, the Special Servicer, and any
Affiliate, director, shareholder, member, partner, manager, officer, employee or
agent of any of the foregoing shall be indemnified and held harmless by the
Trust Fund out of the Collection Account or the Distribution Account, as
applicable in accordance with Section 3.05, against any loss, liability or
expense (including reasonable legal fees and expenses) incurred in connection
with any legal action or claim relating to this Agreement, the Mortgage Loans or
the Certificates (including, without limitation, the distribution or posting of
reports or other information as contemplated by this Agreement), other than any
loss, liability or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof or that would otherwise constitute a Servicing
Advance; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder or negligent disregard of such obligations or duties; or (iv) incurred
in connection with any violation by any of them of any state or federal
securities law; provided, however, that if and to the extent that a Loan
Combination and/or a related Non-Trust Noteholder is involved, such expenses,
costs and liabilities shall be payable out of the related Loan Combination
Custodial Account pursuant to Section 3.05(e) and, if and to the extent not
solely attributable to a related Non-Trust Loan (or any successor REO Loan with
respect thereto), shall also be payable out of the Collection Account if amounts
on deposit in the related Loan Combination Custodial Account are insufficient
therefor; and provided, further, that in making a determination as to whether
any such indemnity is solely attributable to a Non-Trust Loan (or any successor
REO Loan with respect thereto), the fact that any related legal action was
instituted by such Non-Trust Noteholder shall not create a presumption that such
indemnity is solely attributable thereto.
(b) None of the Depositor, the Master Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and, unless it is
specifically required to bear the costs thereof, that in its opinion may involve
it in any expense or liability for which it is not reasonably assured of
reimbursement by the Trust; provided, however, that the Depositor, the Master
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may 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
hereunder. In such event, the reasonable legal fees, expenses and costs of such
action, proceeding, hearing or examination and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund, and the Depositor,
the Master Servicer and the Special Servicer shall be entitled to be reimbursed
therefor out of amounts attributable to the Mortgage Pool on deposit in the
Collection Account as provided by Section 3.05(a); provided, however, that if a
Loan Combination is involved, such expenses, costs and liabilities shall be
payable out of the related Loan Combination Custodial Account pursuant to
Section 3.05(e) and, if and to the extent not solely attributable to a related
Non-Trust Loan (or any successor REO Loan with respect thereto), shall also be
payable out of the Collection Account if amounts on deposit in the related Loan
Combination Custodial Account are insufficient therefor, and provided, further,
that in making a determination as to whether any such expenses, costs and
liabilities are solely attributable to a Non-Trust Loan (or any successor REO
Loan with respect thereto), the fact that any related legal action was
instituted by such Non-Trust Noteholder shall not create a presumption that such
expenses, costs and liabilities are solely attributable thereto.
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In no event shall the Master Servicer or the Special Servicer be
liable or responsible for any action taken or omitted to be taken by the other
of them or by the Depositor, the Trustee or any Certificateholder, subject to
the provisions of Section 8.05(b).
(c) Each of the Master Servicer and the Special Servicer
agrees to indemnify the Depositor, the Trust Fund and the Trustee and any
Affiliate, director, officer, employee or agent thereof, and hold it harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any willful misfeasance, bad faith or negligence
of the Master Servicer or the Special Servicer, as the case may be, in the
performance of its obligations and duties under this Agreement or by reason of
negligent disregard by the Master Servicer or the Special Servicer, as the case
may be, of its duties and obligations hereunder or by reason of breach of any
representations or warranties made by it herein. The Master Servicer and the
Special Servicer may consult with counsel, and any written advice or Opinion of
Counsel shall be full and complete authorization and protection with respect to
any action taken or suffered or omitted by it hereunder in good faith in
accordance with the Servicing Standard and in accordance with such advice or
Opinion of Counsel relating to (i) tax matters, (ii) any amendment of this
Agreement under Article XI, (iii) the defeasance of any Trust Defeasance
Mortgage Loan or (iv) any matter involving legal proceedings with a Mortgagor.
The Trustee shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Trust Fund or the
Trustee to indemnification hereunder, whereupon the Master Servicer or Special
Servicer, as the case may be, shall assume the defense of such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer or
Special Servicer, as the case may be, shall not affect any rights that the Trust
Fund or the Trustee, as the case may be, may have to indemnification under this
Agreement or otherwise, unless the Master Servicer's or Special Servicer's, as
the case may be, defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the indemnifying party.
The Depositor shall immediately notify the Master Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Depositor to
indemnification hereunder, whereupon the Master Servicer or Special Servicer, as
the case may be, shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer or Special
Servicer, as the case may be, shall not affect any rights that the Depositor may
have to indemnification under this Agreement or otherwise, unless the Master
Servicer's or Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
indemnifying party.
The Depositor agrees to indemnify the Master Servicer, the Special
Servicer and the Trustee and any Affiliate, director, officer, employee or agent
thereof, and hold them harmless, from and against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related out-of-pocket
costs, judgments, and any other out-of-pocket costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any breach
of representations and warranties or the willful misfeasance, bad faith or
negligence of the Depositor in the performance of the Depositor's
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obligations and duties under this Agreement. The Master Servicer, the Special
Servicer or the Trustee, as applicable, shall immediately notify the Depositor
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans entitling it to indemnification hereunder, whereupon the
Depositor shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Depositor shall not affect
any rights that any of the foregoing Persons may have to indemnification under
this Agreement or otherwise, unless the Depositor's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement.
The Trustee agrees to indemnify the Master Servicer, the Special
Servicer and the Depositor and any Affiliate, director, officer, employee or
agent thereof, and hold them harmless, from and against any and all claims,
losses, penalties, fines, forfeitures, reasonable legal fees and related
out-of-pocket costs, judgments, and any other out-of-pocket costs, liabilities,
fees and expenses that any of them may sustain arising from or as a result of
any breach of representations and warranties made by it herein or as a result of
any willful misfeasance, bad faith or negligence of the Trustee in the
performance of its obligations and duties under this Agreement or the negligent
disregard by the Trustee of its duties and obligations hereunder. The Depositor,
Master Servicer or the Special Servicer, as applicable, shall immediately notify
the Trustee if a claim is made by a third party with respect to this Agreement
or the Mortgage Loans entitling it to indemnification hereunder, whereupon the
Trustee shall assume the defense of such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights that any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Trustee's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the
indemnifying party.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may each 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 the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation 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 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time provided that (i) a willing successor thereto has been
found by the Master Servicer or Special Servicer, as applicable, (ii) each of
the Rating Agencies confirms in writing that the resignation and the successor's
appointment will not result in an Adverse Rating Event, (iii) the resigning
party pays all costs and expenses in connection with such resignation and the
resulting transfer of servicing, and (iv) the successor accepts appointment
prior to the effectiveness of such resignation and agrees in writing to be bound
by the terms and
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conditions of this Agreement. Neither the Master Servicer nor the Special
Servicer shall be permitted to resign except as contemplated above in this
Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Section 3.22, delegate to or 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 the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee (except as
expressly contemplated by Section 3.11(a)), the Special Servicing Fee, any
Workout Fee (except as expressly contemplated by Section 3.11(c)) and/or any
Principal Recovery Fee, as applicable, that accrues pursuant hereto from and
after the date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or Special Servicer hereunder or exercise the
rights of the Master Servicer and the Special Servicer hereunder; provided,
however, that neither the Master Servicer nor the Special Servicer shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee and, provided, further, that the Depositor may not
exercise any right pursuant to Section 7.01 to terminate the Master Servicer or
the Special Servicer as a party to this Agreement. The Depositor shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each (to the extent not already furnished under this Agreement) furnish such
reports, certifications and information (including, with regard to the Master
Servicer, the identity of any Non-Trust Noteholder) as are reasonably requested
by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each (to
the extent not already furnished under this Agreement) furnish such reports,
certifications and information as are reasonably requested by the Master
Servicer in order to enable it to perform its duties hereunder.
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SECTION 6.08. Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
The Depositor, the Master Servicer, and the Trustee shall each (to
the extent not already furnished under this Agreement) furnish such reports,
certifications and information as are reasonably requested by the Special
Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the
Controlling Class.
The Holder or Holders (or, in the case of Book-Entry Certificates,
the Certificate Owner or Certificate Owners) of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class may at any time
and from time to time designate a Person meeting the requirements set forth in
Section 6.04 (including, without limitation, Rating Agency confirmation) to
serve as Special Servicer hereunder and to replace any existing Special Servicer
or any Special Servicer that has resigned or otherwise ceased to serve as
Special Servicer; provided that such Holder or Holders (or such Certificate
Owner or Certificate Owners, as the case may be) shall pay all costs related to
the transfer of servicing if the Special Servicer is replaced other than due to
an Event of Default. Such Holder or Holders (or such Certificate Owner or
Certificate Owners, as the case may be) of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class shall so
designate a Person to serve as replacement Special Servicer by the delivery to
the Trustee, the Master Servicer and the existing Special Servicer of a written
notice stating such designation. The Trustee shall, promptly after receiving any
such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit H-1. If such Holder or
Holders (or such Certificate Owner or Certificate Owners, as the case may be) of
the Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class have not replaced the Special Servicer within 30 days of such
Special Servicer's resignation or the date such Special Servicer has ceased to
serve in such capacity, the Trustee shall designate a successor Special Servicer
meeting the requirements set forth in Section 6.04. Any designated Person shall
become the Special Servicer, subject to satisfaction of the other conditions set
forth below, on the date that the Trustee shall have received written
confirmation from all of the Rating Agencies that the appointment of such Person
will not result in an Adverse Rating Event. The appointment of such designated
Person as Special Servicer shall also be subject to receipt by the Trustee of
(1) an Acknowledgment of Proposed Special Servicer in the form attached hereto
as Exhibit H-2, executed by the designated Person, and (2) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 6.09 and all other applicable provisions of this
Agreement, that upon the execution and delivery of the Acknowledgment of
Proposed Special Servicer the designated Person shall be bound by the terms of
this Agreement, and subject to customary limitations, that this Agreement shall
be enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that the resigning Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, and it shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such resignation. Such
resigning Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the resigning Special
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer (within two Business Days of the terminated Special Servicer
receiving notice from the Trustee that all conditions to the appointment of the
replacement Special Servicer hereunder have been satisfied) to the replacement
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the Collection
Account or the applicable REO
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Account or should have been delivered to the Master Servicer or that are
thereafter received with respect to Specially Serviced Mortgage Loans and REO
Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, as
appropriate, and (c) describes in reasonable detail the action that the Master
Servicer or the Special Servicer proposes to take. The Trustee, upon receipt of
such notice, shall forward it to the Certificateholders (other than the Master
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
appropriate), together with such instructions for response as the Trustee shall
reasonably determine. 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 the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within 30 days, such action shall be deemed to comply with, but not modify, the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Master Servicer or the 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.
SECTION 6.11. The Controlling Class Representative.
(a) Subject to Section 6.11(b), the Controlling Class
Representative will be entitled to advise the Special Servicer with respect to
the following actions of the Special Servicer with respect to the Trust Mortgage
Loans and any REO Properties (other than the Kenwood Towne Centre Trust Mortgage
Loan or the 00 Xxxxx Xxxxxx Combined Trust Mortgage Loan and, in each case, any
related Loan Combination REO Property, as to which the provisions of Section
6.12 shall apply), and notwithstanding anything herein to the contrary except as
necessary or advisable to avoid an Adverse REMIC Event and except as set forth
in, and in any event subject to, Section 6.11(b), the Special Servicer will not
be permitted to take (or permit the Master Servicer to take) any of the
following actions with respect to the Trust Mortgage Loans and any REO
Properties (other than the Kenwood Towne Centre Trust Mortgage Loan or the 00
Xxxxx Xxxxxx Combined Trust Mortgage Loan and, in each case, any related Loan
Combination REO Property, as to which the provisions of Section 6.12 shall
apply) as to which the Controlling Class Representative has objected in writing
within 10 Business Days of being
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notified in writing thereof, which notification with respect to the action
described in clauses (vi) and (viii) below shall be copied by the Special
Servicer to the Master Servicer (provided that if such written objection has not
been received by the Special Servicer within such 10 Business Day period, then
the Controlling Class Representative's approval will be deemed to have been
given):
(i) any foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of
properties securing such of the Trust Specially Serviced Mortgage Loans as
come or have come into and continue in default;
(ii) any modification or consent to a modification of a
material term of a Trust Mortgage Loan (excluding the waiver of any
due-on-sale or due-on-encumbrance clause, as set forth in clause (vii)
below), including the timing of payments or a modification consisting of
the extension of the maturity date of a Trust Mortgage Loan;
(iii) any proposed sale of any Trust Defaulted Mortgage
Loan or any REO Property (other than in connection with the termination of
the Trust Fund or, in the case of a Trust Defaulted Mortgage Loan,
pursuant to Section 3.18) for less than the Purchase Price of the subject
Trust Defaulted Mortgage Loan or related Trust REO Loan, as applicable;
(iv) any determination to bring an REO Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at an REO Property;
(v) any release of material real property collateral for
any Trust Mortgage Loan, other than (A) where the release is not
conditioned upon obtaining the consent of the lender or certain specified
conditions being satisfied, (B) upon satisfaction of that Trust Mortgage
Loan, (C) in connection with a pending or threatened condemnation action
or (D) in connection with a full or partial defeasance of that Trust
Mortgage Loan;
(vi) any acceptance of substitute or additional real
property collateral for any Trust Mortgage Loan (except where the
acceptance of the substitute or additional collateral is not conditioned
upon obtaining the consent of the lender, in which case only notice to the
Controlling Class Representative will be required);
(vii) any waiver of a due-on-sale or due-on-encumbrance
clause in any Trust Mortgage Loan;
(viii) any releases of earn-out reserves or related letters
of credit with respect to a Mortgaged Property securing a Trust Mortgage
Loan (other than where the release is not conditioned upon obtaining the
consent of the lender, in which case only notice to the Controlling Class
Representative will be required;
(ix) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to any
Mortgaged Property or any termination or change, or consent to the
termination or change, of the franchise for any Mortgaged Property
operated as a hospitality property (other than where the action is not
conditioned upon obtaining the consent of the lender, in which case only
prior notice to the Controlling Class Representative will be required);
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(x) any determination that an insurance-related default
in respect of a Trust Mortgage Loan is an Acceptable Insurance Default or
that earthquake or terrorism insurance is not available at commercially
reasonable rates; and
(xi) any waiver of insurance required under the related
Mortgage Loan documents for a Trust Mortgage Loan (except as contemplated
in clause (x) above);
provided that, with respect to any Trust Mortgage Loan (other than a Trust
Specially Serviced Mortgage Loan), the 10 Business Days within which the
Controlling Class Representative must object to any such action shall not exceed
by more than five Business Days the 10 Business Day period the Special Servicer
has to object to the Master Servicer taking such action as set forth in Sections
3.02, 3.08 and 3.20.
In addition, subject to Section 6.11(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, any such actions as the Controlling Class Representative may deem
advisable or as to which provision is otherwise made herein.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection given or made, or consent withheld, by the Controlling
Class Representative, contemplated by Section 6.11(a) or any other section of
this Agreement, may (i) require or cause the Master Servicer or the Special
Servicer to violate any applicable law, the terms of any Trust Mortgage Loan,
any provision of this Agreement, including without limitation the Master
Servicer's or the Special Servicer's obligation to act in accordance with the
Servicing Standard or the Mortgage Loan documents for any Trust Mortgage Loan,
(ii) result in an Adverse REMIC Event with respect to REMIC I or REMIC II or
otherwise violate the REMIC Provisions or result in an Adverse Grantor Trust
Event or have adverse tax consequences for the Trust Fund, (iii) expose the
Depositor, the Master Servicer, the Special Servicer, the Trust Fund, the
Trustee, any Fiscal Agent or any of their respective Affiliates, directors,
officers, employees or agents, to any claim, suit or liability to which they
would not otherwise be subject absent such advice, direction or objection or
consent withheld, (iv) materially expand the scope of the Master Servicer's or
the Special Servicer's responsibilities hereunder or (v) cause the Master
Servicer or the Special Servicer to act, or fail to act, in a manner which
violates the Servicing Standard. The Master Servicer and the Special Servicer
shall disregard any action, direction or objection on the part of the
Controlling Class Representative that would have any of the effects described in
clauses (i) through (v) of the prior sentence.
The Special Servicer shall not be obligated to seek approval from
the Controlling Class Representative under Section 6.11(a) for any actions to be
taken by the Special Servicer with respect to any particular Trust Specially
Serviced Mortgage Loan if (i) the Special Servicer has, as set forth in the
first paragraph of Section 6.11(a), notified the Controlling Class
Representative in writing of various actions that the Special Servicer proposes
to take with respect to the work-out or liquidation of that Trust Specially
Serviced Mortgage Loan and (ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of the proposed actions and
has failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
(c) The Controlling Class Representative will have no duty or
liability to the Certificateholders (other than the Controlling Class) for any
action taken, or for refraining from the taking of any action pursuant to this
Agreement, or for errors in judgment. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Controlling Class
Representative may take actions that favor the interests of one or more Classes
of the Certificates over other Classes of the Certificates, and that the
Controlling Class Representative may have special relationships and
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interests that conflict with those of Holders of some Classes of the
Certificates, that the Controlling Class Representative may act solely in the
interests of the Holders of the Controlling Class, that the Controlling Class
Representative does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Controlling Class
Representative shall have no liability by reason of its having acted solely in
the interests of the Holders of the Controlling Class, 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.
SECTION 6.12. Certain Matters with Respect to the Kenwood Towne
Centre Loan Combination and the 00 Xxxxx Xxxxxx
Loan Combination.
(a) The Master Servicer and the Special Servicer each hereby
agree that, prior to taking any of the Loan Combination Specially Designated
Servicing Actions with respect to either of the Kenwood Towne Centre Loan
Combination or the 00 Xxxxx Xxxxxx Loan Combination, it shall consult with,
provide required notices and information to, obtain the consent of, receive
objection(s) from and/or take advice and/or direction from, the related Loan
Combination Controlling Party, in each case subject to, and to the extent
required by, Section 4 of the related Loan Combination Intercreditor Agreement.
Notwithstanding the foregoing, the Controlling Class Representative, at any time
when it is not the Loan Combination Controlling Party with respect to either of
the Kenwood Towne Centre Loan Combination or the 00 Xxxxx Xxxxxx Loan
Combination, shall have the right to consult with the Special Servicer (who
shall not be obligated, as a result of such consultation, to take any action
that would conflict with any actions that it is taking at the direction of the
related Loan Combination Controlling Party pursuant to this Section 6.12 and the
related Loan Combination Intercreditor Agreement) with respect to the Kenwood
Towne Centre Loan Combination or the 00 Xxxxx Xxxxxx Loan Combination, as the
case may be, with respect to any proposed Loan Combination Specially Designated
Servicing Action.
(b) If, and for so long as, a Loan Combination Control Appraisal
Event has occurred and is continuing with respect to the Kenwood Towne Centre
B-Note Non-Trust Loan or the 00 Xxxxx Xxxxxx B-Note Non-Trust Loan, as the case
may be, and the Trust, as holder of the related A-Note Trust Mortgage Loan (or
any successor Trust REO Loan with respect thereto), is the related Loan
Combination Controlling Party, the Controlling Class Representative (i) is
hereby designated as the representative of the Trust for purposes of exercising
the rights and powers of the Loan Combination Controlling Party under the
related Loan Combination Intercreditor Agreement and (ii) shall be the related
Loan Combination Controlling Party hereunder. The Master Servicer (with the
cooperation of the Trustee) shall take such actions as are necessary or
appropriate to make such designation effective in accordance with the related
Loan Combination Intercreditor Agreement. The Master Servicer shall provide the
parties to this Agreement with notice of the occurrence of a Loan Combination
Control Appraisal Event promptly upon becoming aware of the occurrence thereof.
Until such time as the Controlling Class Representative shall be the applicable
Loan Combination Controlling Party pursuant to the second preceding sentence,
any and all expenses of the Loan Combination Controlling Party shall be borne by
the related B-Note Loan Holder and not by the Trust, and for so long as the
Controlling Class Representative shall be the applicable Loan Combination
Controlling Party pursuant to the second preceding sentence, any and all
expenses of the Controlling Class Representative as such Loan Combination
Controlling Party 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.
(c) Each of the rights of a B-Note Loan Holder under or
contemplated by this Section 6.12 shall be exercisable, to the extent not
prevented by the related Loan Combination Intercreditor Agreement, by a designee
thereof on its behalf; provided that the Master Servicer, the Special Servicer
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and the Trustee are provided with written notice by such B-Note Loan Holder of
such designation (upon which such party may conclusively rely) and the contact
details of the designee.
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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) any failure by the Master Servicer to deposit into
the Collection Account or a Loan Combination Custodial Account any amount
required to be so deposited by it under this Agreement, which failure
continues unremedied for two Business Days following the date on which the
deposit was required to be made; or
(ii) any failure by the Master Servicer to deposit into,
or to remit to the Trustee for deposit into, the Distribution Account or
any other account maintained by the Trustee hereunder, any amount required
to be so deposited or remitted by it under this Agreement, which failure
continues unremedied until 11:00 a.m. New York City time on the Business
Day following the date on which the remittance was required to be made,
provided that to the extent the Master Servicer does not timely make such
remittances, the Master Servicer shall pay the Trustee (for the account of
the Trustee) interest on any amount not timely remitted at the Prime Rate
from and including the applicable required remittance date to but not
including the date such remittance is actually made; or
(iii) any failure by the Special Servicer to deposit into
the applicable REO Account or to deposit into, or to remit to the Master
Servicer for deposit into, the Collection Account, any amount required to
be so deposited or remitted by it under this Agreement provided; however
that the failure to deposit or remit such amount shall not be an Event of
Default if such failure is remedied within one Business Day and in any
event on or prior to the related P&I Advance Date; or
(iv) any failure by the Master Servicer to timely make
any Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of five Business Days following the
date on which notice shall have been given to the Master Servicer by the
Trustee as provided in Section 3.03(c); or
(v) any failure on the part of the Master Servicer or
the Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, as the case may be, contained in this
Agreement, 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 the Master Servicer or the
Special Servicer, as the case may be, by any other party hereto (with a
copy to each other party hereto) or by the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that (A)
with respect to any such failure (other than a failure referred to in
clause (v)(B) below) which is not curable within such 30-day period, the
Master Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of 30 days to effect such cure so long as the
Master Servicer or the Special Servicer, as the case may be, has commenced
to cure the subject failure within the initial 30-day period and has
provided the Trustee and any affected Non-Trust Noteholder(s) with an
Officer's Certificate certifying that it has diligently pursued, and is
diligently continuing to pursue, a full cure, or (B) in the case of a
failure to deliver to the Trustee and the Depositor the Annual Statement
of Compliance, the
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Annual Assessment Report, the Annual Attestation Report and/or, if
required to be filed with the Commission, the Accountant's Consent with
respect to the Master Servicer (or any Additional Item 1123 Servicer or
Sub-Servicing Function Participant, as applicable, engaged thereby that is
not identified on Exhibit K hereto) or the Special Servicer (or any
Additional Item 1123 Servicer or Sub-Servicing Function Participant, as
applicable, engaged thereby), as applicable, pursuant to Section 3.13 or
Section 3.14, as applicable, which is required to be part of or
incorporated in a Subsequent Exchange Act Report required to be filed with
respect to the Trust pursuant to the Exchange Act and this Agreement,
continues unremedied beyond 5:00 p.m. (New York City time) on the second
Business Day after the date on which Servicer Notice of the subject
failure has been given to the Master Servicer or the Special Servicer, as
the case may be, by or on behalf of any other party hereto; in accordance
with Section 3.13 or Section 3.14, as applicable , or (C) in the case of a
failure to notify the Trustee and the Depositor that an Additional Item
1123 Servicer or a Sub-Servicing Function Participant has been retained or
engaged, which Additional Item 1123 Servicer or Sub-Servicing Function
Participant was performing duties with respect to all or any part of the
Trust Fund during an Exchange Act Reporting Year, continues unremedied for
30 days; or
(vi) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders and which breach continues unremedied for a period
of 30 days after the date on which written notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other party
hereto (with a copy to each other party hereto) or by the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such breach which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days so long as
the Master Servicer or the Special Servicer, as the case may be, has
commenced to cure such breach within the initial 30-day period and
provided the Trustee with an Officer's Certificate certifying that it has
diligently pursued, and is diligently continuing to pursue, a full cure;
or
(vii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer or the Special Servicer and
such decree or order shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days, provided, however, that
the Master Servicer or the Special Servicer, as appropriate, will have an
additional period of 30 days to effect such discharge, dismissal or stay
so long as the Master Servicer or the Special Servicer, as appropriate,
has commenced the appropriate proceedings to have such decree or order
dismissed, discharged or stayed within the initial 60 day period; or
(viii) the Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling 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
(ix) the Master Servicer or the 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
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applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(x) Any of DBRS, Fitch or S&P has (1) qualified,
downgraded or withdrawn its rating or ratings of one or more Classes of
Certificates or (2) placed one or more Classes of the Certificates on
"watch status" (and such "watch status" placement shall not have been
withdrawn by DBRS, Fitch or S&P, as the case may be, within 60 days
thereof) and, in the case of either clauses (1) or (2), cited servicing
concerns with the Master Servicer or the Special Servicer, as the case may
be, as the sole or a material factor in such rating action;
(xi) the Master Servicer or the Special Servicer is
removed from S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as the
case may be, and is not reinstated within 60 days after its removal
therefrom; or
(xii) the Master Servicer ceases to be rated at least CMS3
by Fitch or the Special Servicer ceases to be rated at least CSS3 by Fitch
and such rating is not restored within 30 days after the subject downgrade
or withdrawal.
If any Event of Default shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Controlling Class
Representative or the Holders of Certificates entitled to at least 25% of the
Voting Rights, the Trustee shall, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto and the Rating Agencies),
terminate all of the rights and obligations (but not the liabilities for actions
and omissions occurring prior thereto) of the Defaulting Party under this
Agreement and in and to the Trust Fund and each Non-Trust Loan, other than its
rights, if any, as a Certificateholder hereunder or as holder of a Non-Trust
Loan; provided that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and it (and
each of its Affiliates, directors, partners, members, managers, shareholders,
officers, employees or agents) shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination; provided, further, that
nothing contained in this Section 7.01(b) shall terminate any rights purchased
or otherwise owned or held by the Master Servicer to primary service any of the
Mortgage Loans as a Sub-Servicer to the Trustee or any other replacement Master
Servicer; provided, further, that the Master Servicer may not be terminated
solely for an Event of Default that affects only a Non-Trust Noteholder; and
provided, further, that the Special Servicer may not be terminated solely for an
Event of Default that affects only a Non-Trust Noteholder. From and after the
receipt by the Defaulting Party of such written notice of termination, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a holder of any Certificate) or the
Mortgage Loans or otherwise, 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. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than 20 Business Days subsequent to
its receipt of the notice of termination) provide the
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Trustee with all documents and records, including those in electronic form,
requested thereby to enable the Trustee or a successor Master Servicer or
Special Servicer to assume the Master Servicer's or Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, (i) the transfer within 5 Business Days to the Trustee or a
successor Master Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Master Servicer to the
Collection Account, any Loan Combination Custodial Account, the Distribution
Account, a Servicing Account or a Reserve Account (if the Master Servicer is the
Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or (ii) the transfer within two Business Days to
the Trustee or a successor Special Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Special
Servicer to an REO Account, the Collection Account, any Loan Combination
Custodial Account, a Servicing Account or a Reserve Account or delivered to the
Master Servicer (if the Special Servicer is the Defaulting Party) or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property. Any costs or expenses in connection with any actions to be taken
by the Master Servicer, the Special Servicer or the Trustee pursuant to this
paragraph shall be borne by the Defaulting Party and if not paid by the
Defaulting Party within 90 days after the presentation of reasonable
documentation of such costs and expenses, such costs and expenses shall be
reimbursed by the Trust Fund; provided, however, that the Defaulting Party shall
not thereby be relieved of its liability for such costs and expenses. If and to
the extent that the Defaulting Party has not reimbursed such costs and expenses,
the Trustee shall have an affirmative obligation to take all reasonable actions
to collect such expenses on behalf of and at the expense of the Trust Fund. For
purposes of this Section 7.01 and of Section 7.03(b), the Trustee shall not be
deemed to have knowledge of an event which constitutes, or which with the
passage of time or notice, or both, would constitute an Event of Default
described in clauses (i)-(viii) of subsection (a) above unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04 or 6.09, be the successor in all respects to the Master Servicer or
the 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 have
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, the unmade P&I Advances that gave
rise to such Event of Default; provided that any failure to perform such duties
or responsibilities caused by the Master Servicer's or the Special Servicer's,
as the case may be, failure to provide information or monies required by Section
7.01 shall not be considered a default by the Trustee hereunder. Notwithstanding
anything contrary in this Agreement, the Trustee shall in no event be held
responsible or liable with respect to any of the representations and warranties
of the resigning or terminated party (other than the Trustee) or for any losses
incurred by such resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee 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 if the resigning or terminated party had
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continued to act hereunder. Notwithstanding the above and subject to its
obligations under Section 3.22(d) and 7.01(b), the Trustee may, if it shall be
unwilling in its sole discretion to so act as either Master Servicer or Special
Servicer, as the case may be, or shall, if it is unable to so act as either
Master Servicer or Special Servicer, as the case may be, or shall, if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies, or if either the Controlling Class
Representative or the Holders of Certificates entitled to a majority of the
Voting Rights so request in writing to the Trustee, promptly appoint, subject to
the approval of each of the Rating Agencies (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause an Adverse Rating Event, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
that meets the requirements of Section 6.02 (including, without limitation,
rating agency confirmation), which institution shall, in the case of an
appointment by the Trustee, be reasonably acceptable to the Controlling Class
Representative; provided, however, that in the case of a resigning or terminated
Special Servicer, such appointment shall be subject to the rights of the Holders
or Certificate Owners of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class to designate a successor pursuant to Section
6.09. Except with respect to an appointment provided below, no appointment of a
successor to the Master Servicer or the Special Servicer hereunder shall be
effective until the assumption of the successor to such party of all its
responsibilities, duties and liabilities under this Agreement. Pending
appointment of a successor to the Master Servicer or the Special Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided.
Notwithstanding the above, the Trustee shall, if the Master Servicer is the
resigning or terminated party and the Trustee is prohibited by law or regulation
from making P&I Advances, promptly appoint any established mortgage loan
servicing institution that has a net worth of not less than $15,000,000 and is
otherwise acceptable to each Rating Agency (as evidenced by written confirmation
therefrom to the effect that the appointment of such institution would not cause
an Adverse Rating Event), as the successor to the Master Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer hereunder (including, without limitation, the obligation
to make P&I Advances), which appointment will become effective immediately. In
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans and REO Properties as it and such successor shall
agree, subject to the terms of this Agreement and/or any Loan Combination
Intercreditor Agreement limiting the use of funds received in respect of a Loan
Combination to matters related to the related Loan Combination; provided,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. Such successor and the other parties
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and each
Non-Trust 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 notice of the occurrence of such an event, the Trustee
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shall notify the Depositor, all Certificateholders, each Non-Trust Noteholder
(if affected thereby) and the Rating Agencies of such occurrence, unless such
default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders 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, however, that an Event of
Default under clauses (i), (ii), (iii), (x), (xi) or (xii) of Section 7.01(a)
may be waived only by all of the Certificateholders of the affected Classes; and
provided, further, that an Event of Default contemplated by clause (B) or clause
(C) of Section 7.01(a)(v) may only be waived with the consent of the Depositor.
Upon any such waiver of an Event of Default, 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
Voting Rights with respect to the matters described above.
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, in its own name and as
trustee of an express trust, 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
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). 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. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01. Duties of Trustee
(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 man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that 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), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein or therein. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take such action as it deems appropriate to have the instrument
corrected. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor or the Master Servicer or the
Special Servicer, and accepted by the Trustee, in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such 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 and, in
the absence of bad faith on the part of the Trustee, the Trustee 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 and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts if it was
required to do so;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates entitled
to at least 25% 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; and
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(iv) The protections, immunities and indemnities afforded
to the Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may, in the absence of bad faith or
negligence on the part of the Trustee, conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee may consult with counsel and the written
advice 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, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; except as provided
in Section 10.01 or 10.02, the Trustee, shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; 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 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) the Trustee shall not 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
hereunder and after the curing of all Events of Default which may have
occurred, and except as may be provided in Section 10.01 or 10.02, 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
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Agreement, the Trustee, may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the Trustee, shall remain
responsible for all acts and omissions of such agents or attorneys within
the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder and provided, further, that,
unless and until the Trustee has filed a Form 15 with respect to the Trust
in accordance with Section 8.16, the Trustee may not engage any such agent
or attorney-in-fact that would constitute an Additional Item 1123 Servicer
or a Sub-Servicing Function Participant, unless it first (i) obtains the
written consent of the Depositor, which consent shall not be unreasonably
withheld, and (ii) delivers to the Depositor an indemnity reasonably
acceptable to the Depositor to cover any losses, liabilities, claims,
damages, costs or expenses incurred by the Depositor by reason of such
agent or attorney-in-fact failing to timely deliver an Annual Statement of
Compliance, an Annual Assessment Report or an Annual Attestation Report,
in each case as contemplated by Section 3.13 and/or Section 3.14, as
applicable;
(vii) the Trustee shall not be responsible for any act or
omission of the Master Servicer, the Special Servicer (unless the Trustee
is acting as Master Servicer or the Special Servicer) or the Depositor;
and
(viii) 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 of record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement. The Trustee and 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 of record ownership in the
Certificate Register.
Whenever in the administration of the provisions of this Agreement
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer's
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Agreement upon the faith thereof.
SECTION 8.03. Trustee and Fiscal Agent 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 the Trustee in Article II and Section 8.15, the
statements attributed to any Fiscal Agent in Section 8.19 and the signature of
the Certificate Registrar and the Authenticating Agent set forth on each
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outstanding Certificate, shall be taken as the statements of the Depositor or
the Master Servicer or the Special Servicer, as the case may be, and neither the
Trustee nor any Fiscal Agent assumes any responsibility for their correctness.
Except as set forth in Section 8.15, the Trustee makes no representations as to
the validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee and any Fiscal Agent shall not 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 Trust Mortgage
Loans to the Trust Fund, or any funds deposited in or withdrawn from the
Collection Account or any other account by or on behalf of the Depositor, the
Master Servicer or the Special Servicer. The Trustee and any Fiscal Agent shall
not be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, any Fiscal Agent or any agent of the Trustee or any
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with the same rights (except as otherwise provided in
the definition of "Certificateholder") it would have if it were not the Trustee
or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from
the general funds on deposit in the Distribution Account as provided in Section
3.05(b), prior to any distributions to be made therefrom on such date, and pay
to itself all earned but unpaid Trustee Fees for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, as
compensation for all services rendered by the Trustee in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder. Except as contemplated by Section 3.06, 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) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee (whether in its individual capacity or its
capacity as Trustee) and any director, officer, employee, affiliate, agent or
"control" person within the meaning of the Securities Act of 1933, as amended,
of the Trustee shall be entitled to be indemnified for and held harmless by the
Trust Fund out of the Collection Account (and, to the extent that any Loan
Combination and/or any related REO Property is affected, by the Trust Fund
and/or the related Non-Trust Noteholder(s) out of the related Loan Combination
Custodial Account) against any loss, liability or reasonable "out-of-pocket"
expense (including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with this Agreement, the Mortgage
Loans or the Certificates or any act of the Master Servicer or the Special
Servicer taken on behalf of the Trustee as provided for herein, provided that
such expense constitutes an "unanticipated expense" within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii); and provided, further, that
neither the Trustee, nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (1) any
liability specifically required to be borne thereby pursuant to the terms
hereof, (2) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of its negligent disregard of
such obligations and duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein, or
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(3) any loss, liability or expense that constitutes an Advance (the
reimbursement of which is separately addressed herein) or allocable overhead.
The provisions of this Section 8.05(b) shall survive any resignation or removal
of the Trustee and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association, a bank,
a trust company or a corporation organized and doing business under the laws of
the United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $100,000,000 and subject to supervision or examination
by a federal or state banking authority. If such association, bank, trust
company or corporation 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 association, bank, trust company or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The Trustee shall also be an entity with a long term
unsecured debt rating of at least "A" from each of DBRS (but only to the extent
the Trustee is rated by DBRS) and Fitch and "A+" from S&P or an entity that has
a fiscal agent with such ratings, or such other rating that shall not result in
an Adverse Rating Event as confirmed in writing.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) result in an Adverse
Rating Event, then upon the execution and delivery of such agreement the Trustee
shall not be required to resign, and may continue in such capacity, for so long
as no Adverse Rating Event occurs as a result of the Trustee's continuing in
such capacity. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates but,
except to the extent permitted or required by Section 7.02, shall not be an
"Affiliate" (as such term is defined in Section III of PTE 2000-58) of the
Master Servicer, the Special Servicer, any sub-servicer, the Depositor, or any
obligor with respect to Trust Mortgage Loans constituting more than 5.0% of the
aggregate authorized principal balance of the Trust Mortgage Loans as of the
date of the initial issuances of the Certificates or any "Affiliate" (as such
term is defined in Section III of PTE 2000-58) of any such person.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, to all Certificateholders at their
respective addresses set forth in the Certificate Register. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
meeting the requirements in Section 8.06 and acceptable to the Rating Agencies
by written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee, and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee 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 the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail (other than by reason of the failure
of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
reasonable control), to timely deliver any report to be delivered by the Trustee
pursuant to Section 4.02 and such failure shall continue unremedied for a period
of five days, or if the Trustee shall fail (other than by reason of the failure
of the Master Servicer, the Special Servicer or the Depositor to timely perform
its obligations hereunder or as a result of other circumstances beyond the
Trustee's reasonable control) to timely perform any of its obligations set forth
in Section 3.13, Section 3.14 or Section 8.16(a) and such failure adversely
affects the Depositor's ability to use or file a registration statement on Form
S-3 for purposes of publicly offering commercial mortgage-backed securities, or
if the Trustee fails to make distributions required pursuant to Section 3.05(b),
4.01 or 9.01, then the Depositor may remove the Trustee and appoint a successor
trustee, if necessary, acceptable to the Master Servicer and the Rating Agencies
(as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause an Adverse Rating Event) by
written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor trustee
so appointed.
(d) In the event that the Trustee is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
(including, without limitation, P&I Advances and accrued interest thereon)
accrued or owing to it under this Agreement, with respect to periods prior to
the date of such termination or removal and no termination without cause shall
be effective until the payment of such amounts to the Trustee).
(e) Any resignation or removal of the Trustee and appointment of
a successor trustee, pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
trustee, as provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to its predecessor trustee, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein.
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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 third-party Custodian, which
Custodian shall become the agent of the successor trustee), and the Depositor,
the Master Servicer, the 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. Any and all costs and
expenses associated with transferring the duties of a Trustee that has resigned
or been removed or terminated, as contemplated by Section 8.07, to a successor
Trustee, including those associated with transfer of the Mortgage Files and
other documents and statements held by the predecessor Trustee to the successor
Trustee, as contemplated by Section 8.08(a), shall be paid by: (i) the
predecessor Trustee, if such predecessor Trustee has resigned in accordance with
Section 8.07(a), has been removed in accordance with Section 8.07(b) or has been
removed with cause in accordance with Section 8.07(c); (ii) the
Certificateholders that effected the removal, if the predecessor Trustee has
been removed without cause in accordance with Section 8.07(c); and (iii) the
Trust, if such costs and expenses are not paid by the predecessor Trustee or the
subject Certificateholders, as contemplated by the immediately preceding clauses
(i) and (ii), within 90 days after they are incurred (provided that such
predecessor Trustee or such subject Certificateholders, as applicable, shall
remain liable to the Trust for such costs and expenses).
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and the Rating Agencies
have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Certificateholders
and each Non-Trust Noteholder.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee 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 shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06 and the Rating Agencies have provided confirmation pursuant to
such Section, 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 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
Master Servicer and the Trustee may consider necessary or desirable. If the
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 Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such
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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
hereunder 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
hereof.
(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 as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust 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.
(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 cease to exist, 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 appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of
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assumption, obligations of the Custodian under such agreement or alternatively,
may terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) not permit the Custodian any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of any Custodian. In the absence of any other Person
appointed in accordance herewith acting as Custodian, the Trustee agrees to act
in such capacity in accordance herewith. The initial Custodian shall be the
Trustee. Notwithstanding anything herein to the contrary, if the Trustee is no
longer the Custodian, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Custodian shall be
construed to require that such notice, information or documents also be provided
to the Trustee. Any Custodian hereunder (other than the Trustee) shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, in accordance 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 do 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 the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of the Authenticating Agent. If LaSalle Bank National
Association is removed as Trustee, then it shall be terminated as Authenticating
Agent. If the Authenticating Agent (other than LaSalle Bank National
Association) resigns or is terminated, the Trustee shall appoint a successor
Authenticating Agent which may be the Trustee or an Affiliate thereof. In the
absence of any other Person appointed in accordance herewith acting as
Authenticating Agent, the Trustee hereby agrees to act in such capacity in
accordance with the terms hereof. Notwithstanding anything herein to the
contrary, if the Trustee 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 Trustee.
(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 may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
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accordance with the provisions of this Section 8.12, the Trustee may appoint a
successor Authenticating Agent, in which case the Trustee shall give written
notice of such appointment to the Master Servicer, 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 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer, each Rating Agency and the Depositor, to any Certificateholder or
Certificate Owner and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to any documentation regarding the Mortgage Loans within its control that
may be required to be provided by this Agreement or by applicable law. 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
designated by it. Upon request and with the consent of the Depositor and at the
cost of the requesting Party, the Trustee shall provide copies of such
documentation to the Depositor, any Certificateholder and to the OTS, the FDIC
and any other bank or insurance regulatory authority that may exercise authority
over any Certificateholder.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or
more REMIC Administrators, which shall be authorized to act on behalf of the
Trustee in performing the functions set forth in Sections 3.17, 10.01 and 10.02
herein. The Trustee shall cause any such REMIC Administrator to execute and
deliver to the Trustee an instrument in which such REMIC Administrator shall
agree to act in such capacity, with the obligations and responsibilities herein.
The appointment of a REMIC Administrator shall not relieve the Trustee from any
of its obligations hereunder, and the Trustee shall remain responsible and
liable for all acts and omissions of the REMIC Administrator. Each REMIC
Administrator must be acceptable to the Trustee and must be organized and doing
business under the laws of the United States of America or of any State and be
subject to supervision or examination by federal or state authorities. In the
absence of any other Person appointed in accordance herewith acting as REMIC
Administrator, the Trustee hereby agrees to act in such capacity in accordance
with the terms hereof. If LaSalle Bank National Association is removed as
Trustee, then it shall be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator 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 REMIC Administrator shall
be a party, or any Person succeeding to the corporate agency business of any
REMIC Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master
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Servicer, the Certificate Registrar and the Depositor. Upon receiving a notice
of resignation or upon such a termination, or in case at any time any REMIC
Administrator shall cease to be eligible in accordance with the provisions of
this Section 8.14, the Trustee may appoint a successor REMIC Administrator, in
which case the Trustee shall give written notice of such appointment to the
Master Servicer and the Depositor and shall mail notice of such appointment to
all Holders of Certificates; provided, however, that no successor REMIC
Administrator shall be appointed unless eligible under the provisions of this
Section 8.14. Any successor REMIC Administrator 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 REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
SECTION 8.15. Representations, Warranties and Covenants of
Trustee.
The Trustee hereby represents and warrants to the Master Servicer,
the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(a) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States.
(b) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, 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.
(c) Except to the extent that the laws of certain jurisdictions
in which any part of the Trust Fund may be located require that a co-trustee or
separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority to
carry on its business as now being conducted and 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.
(d) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
the terms hereof (including with respect to any advancing obligations
hereunder), subject to (A) applicable bankruptcy, insolvency, reorganization,
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.
(e) The Trustee 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 the
Trustee's good faith reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(f) 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
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into this Agreement or, in the Trustee's good faith reasonable judgment, is
likely to materially and adversely affect the ability of the Trustee to perform
its obligations under this Agreement.
(g) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this Agreement
or the consummation of the transactions contemplated by this Agreement has been
obtained and is effective.
(h) With respect to any Trust Mortgage Loan that is part of a
Loan Combination, the Trustee is qualified to hold that Trust Mortgage Loan
under the related Loan Combination Intercreditor Agreement.
SECTION 8.16. Reports to the Commission.
(a) With respect to any Exchange Act Reporting Year, the Trustee
shall:
(i) as soon as reasonably practicable (and, in any
event, within 15 days or such other period as may be provided under the
Exchange Act and the rules and regulations promulgated thereunder) after
each Distribution Date during such Exchange Act Reporting Year, in
accordance with the Exchange Act, the rules and regulations promulgated
thereunder, and applicable releases and "no-action letters" issued by the
Commission, prepare for filing, arrange for execution by the Depositor and
properly and timely file with the Commission with respect to the Trust, a
Form 10-D Distribution Report with or including, as the case may be, a
copy of the applicable Distribution Date Statement, any applicable Trustee
Reportable Events (and related information) to be reported for the period
covered by the subject Form 10-D Distribution Report and, to the extent
that a Responsible Party of the Trustee has been provided written notice
thereof, any other Form 10-D Required Information to be reported for the
period covered by the subject Form 10-D Distribution Report;
(ii) during such Exchange Act Reporting Year, at the
direction of the Depositor, in accordance with the Exchange Act, the rules
and regulations promulgated thereunder, and applicable releases and
"no-action letters" issued by the Commission, prepare for filing, arrange
for execution by the Depositor and properly and timely file with the
Commission with respect to the Trust, a Form 8-K Current Report regarding
and disclosing any Form 8-K Required Information (except in the case where
it relates to a Trustee Reportable Event, to the extent a Responsible
Officer of the Trustee has been provided with written notice of such
information), within the time periods specified under Form 8-K, the
Exchange Act, the rules and regulations promulgated thereunder and
applicable releases and "no-action letters" issued by the Commission;
provided that the Depositor shall cooperate with the Trustee to determine
the applicable required time period; and provided, further, that, if the
Depositor directs the Trustee to file a Form 8-K Current Report in
accordance with this clause (ii), the Depositor shall cooperate with the
Trustee in preparing such Form 8-K Current Report and the Trustee will
report the subject information in accordance with the Exchange Act, the
rules and regulations promulgated thereunder and applicable releases and
"no-action letters" issued by the Commission;
(iii) within 90 days following the end of such Exchange
Act Reporting Year, prepare, arrange for execution by the Depositor and
properly and timely file with the Commission, with respect to the Trust, a
Form 10-K Annual Report, which complies in all material respects with the
requirements of the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
which
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shall include as exhibits each Annual Statement of Compliance, Annual
Assessment Report and Annual Attestation Report delivered pursuant to or
as contemplated by Section 3.13 and/or Section 3.14, with respect to the
Master Servicer, the Special Servicer or other applicable Person for such
Exchange Act Reporting Year, and which shall further include a
certification in the form attached hereto as Exhibit O (a "Xxxxxxxx-Xxxxx
Certification") (or in such other form as required by the Xxxxxxxx-Xxxxx
Act of 2002, and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the Commission's
staff)) and shall include any other Form 10-K Required Information to be
reported for such Exchange Act Reporting Year (except in the case where it
relates to a Trustee Reportable Event, to the extent a Responsible Officer
of the Trustee has been provided written notice thereof); and
(iv) at the reasonable request of, and in accordance with
the reasonable directions of, the Depositor, prepare for filing, arrange
for execution by the Depositor and promptly file with the Commission an
amendment to any Form 8-K Current Report, Form 10-D Distribution Report or
Form 10-K Annual Report previously filed with the Commission with respect
to the Trust during or relating to, as applicable, such Exchange Act
Reporting Year;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for (or readily convertible to a format suitable for) electronic filing
via the XXXXX system (such suitable formats including "ASCII", "Microsoft Excel"
(solely in the case of reports from the Master Servicer or the Special Servicer
pursuant to Section 3.12), "Microsoft Word" or another format reasonably
acceptable to the Trustee) and shall not have any responsibility to convert any
such items to such format (other than those items generated by it or readily
convertible to such format), and (y) the Depositor shall be responsible for
preparing, executing and filing (via the XXXXX system) a Current Report on Form
8-K reporting the establishment of the Trust and a Current Report on Form 8-K
whereby this Agreement will be filed as an exhibit (the Current Reports on Form
8-K contemplated by this subclause (y) being herein referred to as the "Initial
Form 8-K Current Report"); and provided, further, that if all or any required
portion of a Form 10-K Annual Report or a Form 10-D Distribution Report cannot
be timely filed by the Trustee (other than for a reason contemplated by Rule
12b-25(g) of the Exchange Act), then (i) the Trustee (upon becoming aware
thereof or the reasonable likelihood thereof) shall immediately notify the
Depositor, (ii) the Trustee shall (to the extent appropriate, and at the
direction of the Depositor) file a Form 12b-25 (17 C.F.R. 249.322) in connection
therewith consistent with Rule 12b-25 of the Exchange Act, each party hereto
shall reasonably cooperate with the Trustee and the Depositor to complete the
subject Exchange Act Report and such Exchange Act Report (or the applicable
portions thereof) shall be filed with the Commission as soon as reasonably
practicable and, if the Depositor is relying upon Rule 12b-25 of the Exchange
Act, within the time frames contemplated thereby; and provided, further, that if
all or any required portion of any Exchange Act Report cannot be timely filed by
the Trustee for the sole reason that the Trustee is unable to file the report in
electronic format, then (i) the Trustee (upon becoming aware thereof or the
reasonable likelihood thereof) shall immediately notify the Depositor and, as
determined by the Depositor, the Depositor and the Trustee shall comply with
either Rule 201 or 202 of Regulation S-T or apply for an adjustment of filing
date pursuant to Rule 13b of Regulation S-T. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required for (or readily
convertible to a format suitable for) electronic filing via the XXXXX system
(such suitable formats including "ASCII", "Microsoft Excel" (solely in the case
of reports from the Master Servicer or the Special Servicer pursuant to Section
3.12), "Microsoft Word" or another format reasonably acceptable to the Trustee)
any and all items contemplated to be filed with the Commission pursuant to this
Section 8.16.
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All Form 8-K Current Reports, Form 10-D Distribution Reports and
Form 10-K Annual Reports, as well as any amendments to those reports, that are
to be filed with respect to the Trust pursuant to the Exchange Act, and the
rules and regulations promulgated thereunder, and this Section 8.16(a), are
(together with the exhibits thereto) herein referred to as the "Exchange Act
Reports". The Exchange Act Reports, exclusive of the Initial Current Reports on
Form 8-K, are herein referred to as the "Subsequent Exchange Act Reports". All
Subsequent Exchange Act Reports prepared by the Trustee pursuant to this Section
8.16(a) shall be executed by the Depositor promptly upon delivery thereto and
subject to the Subsequent Exchange Act Report being in form and substance
reasonably acceptable thereto. The Senior Officer in charge of securitization
for the Depositor shall sign the Xxxxxxxx-Xxxxx Certification included in each
Form 10-K Report with respect to the Trust.
The Trustee shall have no liability to Certificateholders or the
Trust or the Depositor or the Underwriters with respect to any failure to
properly prepare or file with the Commission any of the reports under the
Exchange Act contemplated by this Section 8.16(a) to the extent that such
failure did not result from any negligence, bad faith or willful misconduct on
the part of the Trustee. The parties to this Agreement acknowledge that the
performance by the Trustee of its duties under this Section 8.16 related to the
timely preparation, arrangement for execution and filing of Subsequent Exchange
Act Reports is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under Sections 3.13, 3.14 and 8.16.
The Trustee has no duty under this Section 8.16 or otherwise under this
Agreement to enforce the performance by the parties of their duties under this
Section 8.16.
The Trustee shall make available to all Certificateholders and
Certificate Owners on its internet website each Subsequent Exchange Act Report
that is filed with the Commission with respect to the Trust. The Trustee shall
post each such report on its internet website as soon as reasonably practicable
after the filing thereof with the Commission. In addition, the Trustee shall,
free of charge, upon request, deliver to any Certificateholder, Certificate
Owner or party identified as a prospective Certificateholder or Certificate
Owner copies of all Subsequent Exchange Act Reports that are filed with the
Commission with respect to the Trust. Any request contemplated by the prior
sentence shall be made to LaSalle Bank, N.A., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxx (telephone number:
000-000-0000) or to such other Person, address and/or phone number as the
Trustee may specify by notice to Certificateholders.
(b) All Form 10-K Annual Reports with respect to the Trust shall
include a Xxxxxxxx-Xxxxx Certification, in so far as it is required to be part
of any particular Form 10-K Annual Report. The Senior Officer in charge of
securitization for the Depositor shall sign the Xxxxxxxx-Xxxxx Certification.
Each of the Master Servicer, the Special Servicer (who shall also certify to the
Master Servicer) and the Trustee (each, a "Performing Party") shall provide a
certification (each, a "Performance Certification") to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), to the Depositor in the
form set forth on Exhibit P-1 hereto (with respect to the Master Servicer)
hereto with respect to the Special Servicer's certification to the Master
Servicer), Exhibit P-2 hereto (with respect to the Trustee), or Exhibit P-3
hereto (with respect to the Special Servicer's certification to the Certifying
Person of the Depositor), as applicable, on which the Certifying Person, the
Depositor and, in the case of the Special Servicer's Performance Certification,
the Master Servicer may rely. Each partner, representative, Affiliate, member,
manager, shareholder, director, officer, employee and agent of the Depositor or
the Master Servicer (collectively with the Certifying Person, the Depositor and
the Master Servicer, "Certification Parties") may rely on a Performance
Certification (or, in the case of any such Persons related to the Master
Servicer, the
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applicable Performance Certification from the Special Servicer) to the same
extent as the Depositor or the Master Servicer, as the case may be.
Notwithstanding the foregoing, nothing in this paragraph shall require any
Performing Party to (i) certify or verify the accurateness or completeness of
any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge and in
accordance with such Performing Party's responsibilities hereunder or under any
other applicable servicing agreement or (iii) with respect to completeness of
information and reports, to certify anything other than that all fields of
information called for in written reports prepared by such Performing Party have
been completed except as they have been left blank on their face. In addition,
with respect to any report regarding one or more Specially Serviced Mortgage
Loans, the Special Servicer shall not be required to include in any such report
prepared by it specific detailed information related to the status or nature of
any workout negotiations with the related Mortgagor with respect to such
Mortgage Loan or any facts material to the position of the Trust (or, in the
case of a Loan Combination, the position of the Trust and the related Non-Trust
Noteholder(s)) in any such negotiations if (A) the Special Servicer determines,
in its reasonable judgment in accordance with the Servicing Standard, that
stating such information in such report would materially impair the interests of
the Trust (or, in the case of a Loan Combination, the interest of the Trust and
the related Non-Trust Noteholder(s)) in such negotiations, and (B) the Special
Servicer included in such report a general description regarding the status of
the subject Mortgage Loan and an indication that workout negotiations were
ongoing. In the event any Performing Party is terminated or resigns pursuant to
the terms of this Agreement, such Performing Party shall provide a Performance
Certification to the Master Servicer (if the terminated or resigning Performing
Party is the Special Servicer), the Depositor and the Certifying Person pursuant
to this Section 8.16 with respect to the period of time such Performing Party
was subject to this Agreement.
(c) At all times during each Exchange Act Reporting Year, each
of the Trustee, the Master Servicer and the Special Servicer shall (and shall
use reasonable efforts to cause each Servicing Representative acting on its
behalf hereunder and, solely in the case of the Trustee, each Trustee Appointee
to) monitor for, and (in accordance with the timeframes set forth in this
Section 8.16(c)) notify (including with such notice the Exchange Act Reportable
Event Notification attached hereto as Exhibit J) the Depositor and the Trustee
in writing of, the occurrence or existence of any and all events, conditions,
circumstances and/or matters that constitute or may constitute related Exchange
Act Reportable Events with respect thereto. Each of the Trustee, Master Servicer
and Special Servicer shall provide such notice of any Exchange Act Reportable
Event to the Trustee and the Depositor (i) no later than 5 calendar days after
the Distribution Date with respect to any Exchange Act Reportable Event to be
disclosed on Form 10-D, (ii) no later than March 15 in any year in which the
Trustee will file a Form 10-K for the Trust with respect to any Exchange Act
Reportable Event to be disclosed on Form 10-K, and (iii) no later than Noon (New
York City time) on the 2nd Business Day after the occurrence of any Exchange Act
Reportable Event to be disclosed on Form 8-K. Upon becoming aware of any Form
8-K Required Information, the Trustee shall promptly notify the Depositor that
the filing of a Form 8-K Current Report may be required with respect to any of
the events, conditions, circumstances and/or matters that are the subject of
that information and, further, shall consult with the Depositor regarding
whether to prepare and file a Form 8-K Current Report under Section 8.16(a)(ii)
above with respect to such events, conditions, circumstances and/or matters and,
if prepared, the form and content of such filing (and the Trustee shall be
entitled to rely on the direction of the Depositor with regard to whether to
make, and the form and content of, such filing). For purposes of this paragraph,
none of the Trustee, the Master Servicer or the Special Servicer shall be
considered to be aware of any related Exchange Act Reportable Event, and the
Trustee shall not be considered to be aware of any Form 8-K Required
Information, Form 10-D Required Information or Form 10-K Required Information,
unless a
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Responsible Officer (in the case of the Trustee) or a Servicing Officer (in the
case of the Master Servicer or the Special Servicer) thereof has actual
knowledge.
Upon reasonable request of the Depositor or the Trustee, each other
party hereto (including the Trustee, if the Depositor is the requesting party,
and the Depositor, if the Trustee is the requesting party) shall (and shall use
reasonable efforts to cause each Servicing Representative acting on its behalf
hereunder and, solely in the case of the Trustee, each Trustee Appointee, to)
promptly provide to the requesting party any information in its possession as is
necessary or appropriate for the Depositor or the Trustee, as applicable, to
prepare fully and properly any Exchange Act Report with respect to the Trust in
accordance with the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder.
If, during any Exchange Act Reporting Year, a new Master Servicer,
Special Servicer or Trustee is appointed, then such new Master Servicer, Special
Servicer or Trustee, as the case may be, shall in connection with its acceptance
of such appointment provide the Depositor and, in the case of a new Master
Servicer or Special Servicer, the Trustee with such information regarding
itself, its business and operations and its experience and practices regarding
the duties it is to perform under this Agreement, as is required to be reported
by the Depositor pursuant to Item 6.02 of Form 8-K. If, during any Exchange Act
Reporting Year, the Master Servicer, Special Servicer or Trustee appoints a
Servicing Representative that constitutes a Servicer contemplated by Item
1108(a)(2) of Regulation AB in respect of the Subject Securitization
Transaction, then the Master Servicer, Special Servicer or Trustee, as the case
may be, shall cause such Servicing Representative, in connection with its
acceptance of such appointment, to provide the Depositor and the Trustee with
such information regarding itself, its business and operations and its servicing
experience and practices, as is required to be reported by the Depositor
pursuant to Item 6.02 of Form 8-K.
Each of the Trustee, the Master Servicer and the Special Servicer
acknowledges and agrees that the information to be provided by it (or by any
Servicing Representative acting on its behalf hereunder or, solely in the case
of the Trustee, any Trustee Appointee) pursuant to or as contemplated by this
Section 8.16(c) is intended to be used in connection with the preparation of
Exchange Act Reports with respect to the Trust.
(d) No later than (i) 12:00 noon, New York City time, on the
Business Day prior to any filing deadline of a Current Report on Form 8-K (other
than an Initial Current Report on Form 8-K) that is to be made with respect to
the Trust as contemplated by Section 8.16(a), (ii) March 20 of the applicable
calendar year in which the filing of any Annual Report on Form 10-K is to be
made with respect to the Trust as contemplated by Section 8.16(a), and (iii) two
(2) Business Days prior to any filing (or, in the case of a Form 10-D
Distribution Report, any filing deadline) of a Form 10-D Distribution Report or
any other Subsequent Exchange Act Report that is to be made with respect to the
Trust as contemplated by Section 8.16(a), the Trustee shall deliver a copy of
such Exchange Act Report, together with all exhibits thereto (to the extent
received by the Trustee), to the Depositor, which delivery shall include an
e-mail transmission of such the applicable report to xxxxx_xxxxxxx@xx.xxx or to
such other e-mail address as may be hereafter furnished by the Depositor to the
Trustee in writing.
(e) If as of the beginning of any fiscal year for the Trust
(other than fiscal year 2006), the Registered Certificates are held (directly
or, in the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust notifying the Commission of the suspension of the
reporting requirements under the Exchange Act and shall post such
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Form 15 to its internet website. In addition, the Trustee shall deliver a copy
of such Form 15 to the Depositor [by e-mail addressed to xxxxx_xxxxxxx@xx.xxx or
to such other e-mail address as may be hereafter furnished by the Depositor to
the Trustee in writing.
(f) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) any material misstatement in a Performance Certification delivered by such
Performing Party on which such Certification Party is entitled to rely, (ii) an
actual breach by the applicable Performing Party of its obligations under this
Section 8.16 or (iii) negligence, bad faith or willful misconduct on the part of
such Performing Party in the performance of its obligations otherwise under this
Agreement. A Performing Party shall have no obligation to indemnify any
Certification Party for an inaccuracy in the Performance Certification of any
other Performing Party. If the indemnification provided for in this Section
8.16(f) is unavailable or insufficient to hold harmless a Certification Party
(on grounds of public policy or otherwise), then each Performing Party shall
contribute to the amount paid or payable by such Certification Party as a result
of the losses, claims, damages or liabilities of such Certification Party in
such proportion as is appropriate to reflect the relative fault of such
Certification Party on the one hand and such Performing Party on the other. The
obligations of the Performing Parties in this Section 8.16(f) to contribute are
several in the proportions described in the preceding sentence and not joint.
(g) The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Person in connection with such
Person's attempt to conduct any due diligence that such Person reasonably
believes to be appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx
Certification or portion thereof with respect to the Trust.
(h) The respective parties hereto shall deliver to the Trustee,
no later than March 15 of any year in which a Form 10-K Annual Report is to be
filed, any items required to be delivered by such party that are to be an
exhibit to such Form 10-K Annual Report. The Trustee hereby notifies the Master
Servicer and the Special Servicer that a Form 10-K Annual Report shall be
required to be filed with respect to the Trust for 2006.
(i) On or before the fifth Business Day prior to the
Distribution Date in any month in any Exchange Act Reporting Year, the Trustee
shall make a request to the Depositor that the Depositor provide it with the
significance percentage (as such term is used in Regulation AB) with respect to
the Class A-3FL Certificates and the Class AN-FL Certificates. If the
significance percentage with respect to any such Class is 10% or more, the
Trustee shall report such significance percentage in the manner required to be
set forth in the Form 10-D Distribution Report.
(j) Prior to April 1 of the first year in which the Trustee has
filed a Form 15 with the Commission in accordance with this section, if at any
time a Servicing Representative retained or engaged by the Master Servicer, the
Special Servicer or the Trustee with respect to all or any portion of the Trust
Fund fails to deliver, if and to the extent applicable in accordance with
Regulation AB and this Agreement, any of the items set forth in the following
clauses (i), (ii) and/or (iii), then the Master Servicer, the Special Servicer
or the Trustee, as the case may be, shall deliver a written notice thereof to
the Depositor and shall promptly terminate all engagements with the subject
Servicing Representative relating to the Subject Securitization Transaction: (i)
any Annual Statement of Compliance contemplated by Item 1123 of Regulation AB,
as and when provided under Section 3.13; or (ii) any Annual Assessment Report
contemplated by Item 1122 of Regulation AB, as and when provided under Section
3.14; or (iii) any Annual Attestation Report contemplated by Item 1122 of
Regulation AB, together with any corresponding required Accountant's Consent, as
and when provided under Section 3.14; provided that this provision shall not
apply to the initial Master Servicer and the subject matter of this sentence,
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insofar as it relates to the initial Master Servicer, shall be covered by the
Master Servicer Indemnification Agreement. In addition, prior to April 1 of the
first year in which the Trustee has filed a Form 15 with the Commission in
accordance with this section, if at any time the Depositor delivers a written
notice to the Master Servicer, the Special Servicer or the Trustee stating that
any Servicing Representative retained or engaged thereby has defaulted on its
obligation to deliver, (i) if and to the extent applicable in accordance with
Regulation AB and this Agreement, any of the items set forth in clauses (i),
(ii) and/or (iii) of the preceding sentence, as and when provided under this
Agreement, or (ii) if and to the extent applicable in accordance with Regulation
AB and another
pooling and servicing agreement to which the Depositor is a
party, any of the items similar to those set forth in clauses (i), (ii) and/or
(iii) of the preceding sentence, as and when provided under such other
pooling
and servicing agreement, then the Master Servicer, the Special Servicer or the
Trustee, as the case may be, shall promptly terminate all engagements with the
subject Servicing Representative relating to the Subject Securitization
Transaction; provided that this provision shall not apply to the initial Master
Servicer and the subject matter of this sentence, insofar as it relates to the
initial Master Servicer, shall be covered by the Master Servicer Indemnification
Agreement.
(k) The Master Servicer, the Special Servicer and the Trustee
shall each indemnify the Depositor and its Affiliates for, and hold the
Depositor and its Affiliates harmless from and against, any and all losses,
liabilities, claims, damages, costs and expenses whatsoever, as incurred,
arising out of or based upon the failure of any Servicing Representative acting
on behalf of the Master Servicer, the Special Servicer or the Trustee, as the
case may be, to deliver, if and to the extent applicable in accordance with
Regulation AB and this Agreement: (i) any Annual Statement of Compliance
contemplated by Item 1123 of Regulation AB, as and when provided under Section
3.13; or (ii) any Annual Assessment Report contemplated by Item 1122 of
Regulation AB, as and when provided under Section 3.14; or (iii) any Annual
Attestation Report contemplated by Item 1122 of Regulation AB, together with (if
required to be filed with the Commission) any corresponding required
Accountant's Consent, as and when provided under Section 3.14.
(l) In the event the parties to this Agreement desire to further
clarify or amend any provision of this Section 8.16, this Agreement shall be
amended to reflect the new agreement between the parties covering matters in
this Section 8.16 pursuant to Section 11.01, which amendment shall not require
any Opinion of Counsel or Rating Agency confirmations or the consent of any
Certificateholder or any Serviced Non-Trust Mortgage Loan Noteholder; provided
that no such amendment shall diminish the filing requirements under this Section
8.16 on the part of the parties to this Agreement, as a collective whole, in
contravention of applicable law.
(m) With respect to any notice required to be delivered by the
Trustee to the Depositor pursuant to this Section 8.16 or Sections 3.13 or 3.14,
the Trustee may deliver such notice, notwithstanding any contrary provision in
Section 11.05, by telephone call made to Xxxxx Xxxxxxx at 000-000-0000, in which
event the Trustee shall also deliver the same notice by either facsimile to
(000) 000-0000 or via e-mail to xxxxx_xxxxxxx@xx.xxx or to such other facsimile
number, telephone number and/or e-mail address as may be hereafter furnished by
the Depositor to the Trustee in writing.
SECTION 8.17. Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Trust Mortgage Loan, the
Trustee covenants and agrees that it shall maintain each Mortgage File in the
State of Illinois, and that it shall not move any Mortgage File outside the
State of Illinois, other than as specifically provided for in this Agreement,
unless it shall first obtain and provide, at the expense of the Trustee, an
Opinion of Counsel to the Depositor and the Rating Agencies to the effect
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that the Trustee's first priority interest in the Mortgage Notes has been duly
and fully perfected under the applicable laws and regulations of such other
jurisdiction.
SECTION 8.18. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the
rating requirements of Section 8.06, the Trustee may appoint, at the Trustee's
own expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "A" from DBRS
(but only if the Fiscal Agent is rated by DBRS), "A" from Fitch and "AA-" from
S&P (or, in the case of any Rating Agency, such lower rating as will not
result in an Adverse Rating Event (as confirmed in writing to the Trustee and
the Depositor by such Rating Agency)). Any Person so appointed by the Trustee
pursuant to this Section 8.18(a) shall become the Fiscal Agent on the date as of
which the Trustee and the Depositor have received: (i) if the long-term
unsecured debt of the designated Person is not rated at least "A" by DBRS (but
only if the Fiscal Agent is rated by DBRS), "A" by Fitch and "AA-" by S&P,
written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event; (ii) a written
agreement whereby the designated Person is appointed as, and agrees to assume
and perform the duties of, Fiscal Agent hereunder, executed by such designated
Person and the Trustee (such agreement, the "Fiscal Agent Agreement"); and (iii)
an opinion of counsel (which shall be paid for by the designated Person or the
Trustee) substantially to the effect that (A) the appointment of the designated
Person to serve as Fiscal Agent is in compliance with this Section 8.18, (B) the
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (C) the related Fiscal Agent
Agreement has been duly authorized, executed and delivered by the designated
Person and (D) upon execution and delivery of the related Fiscal Agent
Agreement, the designated Person shall be bound by the terms of this Agreement
and, subject to customary bankruptcy and insolvency exceptions and customary
equity exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any Person that acts as Fiscal
Agent shall, for so long as it so acts, be deemed a party to this Agreement for
all purposes hereof. Pursuant to the related Fiscal Agent Agreement, each Fiscal
Agent, if any, shall make representations and warranties with respect to itself
that are comparable to those made by the Trustee pursuant to Section 8.15(a).
(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, a Fiscal Agent (if one has been appointed by the Trustee) shall make
such Advance when and as 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 (if one has been appointed by the Trustee) makes an Advance
pursuant to this Section 8.18 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 to which the Trustee is entitled
hereunder (including, without limitation, pursuant to Section 8.05(b)) as if it
were the Trustee, except that all fees and expenses of a Fiscal Agent (other
than interest owed to such Fiscal Agent in respect of unreimbursed Advances)
incurred by such Fiscal Agent in connection with the transactions contemplated
by this Agreement shall be borne by the Trustee, and neither the Trustee nor
such Fiscal Agent shall be entitled to reimbursement therefor from any of the
Trust, the Depositor, the Master Servicer or the Special Servicer.
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(d) The obligations of a Fiscal Agent set forth in this Section
8.18 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 in accordance with Section 8.18(a) shall belong to the
successor Trustee insofar as such appointment is necessary for such successor
Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto
and the Certificateholders in writing of the appointment, resignation or removal
of a Fiscal Agent.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Trust Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, any Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make distributions to
Certificateholders as hereafter set forth) shall terminate upon distribution (or
provision for distribution) (i) to the Certificateholders of all amounts held by
or on behalf of the Trustee and required hereunder to be so distributed on the
Distribution Date following the earlier to occur of (A) the purchase by the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder of all Trust Mortgage Loans and each REO Property (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) remaining in the Trust Fund at a price equal to
(1) the aggregate Purchase Price of all the Trust Mortgage Loans then included
in the Trust Fund, plus (2) the appraised value of each REO Property (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein), if any, then included in the Trust Fund, such
appraisal to be conducted by an Independent Appraiser mutually agreed upon by
the Master Servicer, the Special Servicer and the Trustee, minus (3) if the
purchaser is the Master Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer, together with any interest accrued and payable to
the Master Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Master Servicer in connection with such purchase), (B) the exchange by the Sole
Certificate Owner of all the Certificates for all the Trust Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth below in
this Section 9.01 and (C) the final payment or other liquidation (or any advance
with respect thereto) of the last Trust Mortgage Loan or REO Property (in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) remaining in the Trust Fund, and (ii) to the
Trustee, the Master Servicer, the Special Servicer, any Fiscal Agent and the
officers, directors, employees and agents of each of them of all amounts which
may have become due and owing to any of them hereunder; provided, however, that
in no event shall the Trust Fund created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
Each of the Plurality Subordinate Certificateholder (or, as
contemplated in the following paragraph, the Controlling Class Representative if
one is then so acting), the Master Servicer and the Special Servicer may at its
option elect to purchase all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) (A) of the immediately
preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided, however,
that (i) the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.00% of the aggregate Cut-off Date Balances of
the Trust Mortgage Loans, (ii) the Special Servicer shall not have the right to
effect such a purchase if, within 30 days following the Special Servicer's
delivery of a notice of election pursuant to this paragraph, the Master Servicer
or the Plurality Subordinate Certificateholder shall give notice of its election
to purchase all of the Trust Mortgage Loans and each REO Property (or, in the
case of a Loan Combination Mortgaged Property if it has become an REO Property,
the Trust's interest therein) remaining in the Trust Fund and shall thereafter
effect such purchase in accordance with the terms
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hereof, and (iii) the Master Servicer shall not have the right to effect such a
purchase if, within 30 days following the Master Servicer's delivery of a notice
of election pursuant to this paragraph, the Plurality Subordinate
Certificateholder shall give notice of its election to purchase all of the Trust
Mortgage Loans and each REO Property remaining in the Trust Fund and shall
thereafter effect such purchase in accordance with the terms hereof. If the
Trust Fund is to be terminated in connection with the Plurality Subordinate
Certificateholder's, the Master Servicer's or the Special Servicer's purchase of
all of the Trust Mortgage Loans and each REO Property (or, in the case of a Loan
Combination Mortgaged Property if it has become an REO Property, the Trust's
interest therein) remaining in the Trust Fund, the Plurality Subordinate
Certificateholder, the Master Servicer or the Special Servicer, as applicable,
shall deliver to the Trustee for deposit in the Collection Account not later
than the Determination Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur an amount in immediately available
funds equal to the above-described purchase price. In addition, the Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred thereto on the related P&I Advance Date from the Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Collection Account that would otherwise be held for
future distribution. Upon confirmation that such final deposit has been made,
the Trustee shall release or cause to be released to the Plurality Subordinate
Certificateholder, the Master Servicer or the Special Servicer, as applicable,
the Mortgage Files for the remaining Trust Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Plurality
Subordinate Certificateholder, the Master Servicer or the Special Servicer, as
applicable, as shall be necessary to effectuate transfer of the Trust Mortgage
Loans and REO Properties (or, in the case of a Loan Combination Mortgaged
Property if it has become an REO Property, the Trust's interest therein) to the
Plurality Subordinate Certificateholder, the Master Servicer or the Special
Servicer (or their respective designees), as applicable.
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class A-2, Class A-3, Class A-3FL, Class A-3B, Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, Class B, Class C
and Class D Certificates is reduced to zero, if one Person is the owner of a
100% Ownership Interest of each of the other outstanding Classes of Regular
Certificates (any such Person, the "Sole Certificate Owner"), then the Sole
Certificate Owner shall have the right to exchange all of the outstanding
Certificates owned by the Sole Certificate Owner for all of the Trust Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (i)(B) of the first paragraph of this Section 9.01(a), by giving written
notice to all the parties hereto and each Non-Trust Noteholder no later than 60
days prior to the anticipated date of exchange; provided that no such exchange
may occur if any of the remaining REO Properties relates to a Loan Combination.
In the event that the Sole Certificate Owner elects to exchange all of the
Certificates owned by the Sole Certificate Owner for all of the Trust Mortgage
Loans and, subject to the proviso to the preceding sentence, each REO Property
remaining in the Trust Fund, the Sole Certificate Owner, not later than the
fifth Business Day preceding the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in the Collection
Account an amount in immediately available funds equal to all amounts then due
and owing to the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent pursuant to Section 3.05(a), or 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 the Collection
Account. In addition, on the P&I Advance Date immediately preceding the final
Distribution Date, the Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred thereto on such P&I Advance Date
from the Collection Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Collection Account that would
otherwise be held for future distribution. 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
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release or cause to be released to a designee of the Sole Certificate Owner, the
Mortgage Files for the remaining Trust Mortgage Loans and REO Properties and
shall execute all assignments, endorsements and other instruments furnished to
it by the Sole Certificate Owner as shall be necessary to effectuate transfer of
the Trust Mortgage Loans and REO Properties remaining in the Trust Fund;
provided that, if any Trust Mortgage Loan exchanged pursuant to this Section
9.01 is part of a Loan Combination, then the release, endorsement or assignment
of the documents constituting the related Mortgage File and Servicing File shall
be in the manner contemplated by Section 3.10. Any transfer of Trust Mortgage
Loans pursuant to this paragraph shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Plurality Subordinate Certificateholder's (or the Controlling Class
Representative's), the Master Servicer's or the Special Servicer's purchase of
the Trust Mortgage Loans and each REO Property (or, in the case of a Loan
Combination Mortgaged Property if it has become an REO Property, the Trust's
interest therein) remaining in the Trust Fund, 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 or (b) otherwise during the month of such final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment 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 offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders. Upon presentation and surrender of the
Certificates by the Certificateholders on the final Distribution Date, the
Trustee shall distribute to each such Certificateholder so presenting and
surrendering its Certificates the amounts payable thereto on such final
Distribution Date in accordance with Section 4.01.
Any funds not distributed to any Holder or Holders of Certificates
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
Trustee 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 Trustee, 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, and
shall deal with all such unclaimed amounts in accordance with applicable law.
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.
SECTION 9.02. Additional Termination Requirements.
(a) If the Plurality Subordinate Certificateholder, the Master
Servicer or the Special Servicer purchases all of the Trust Mortgage Loans and
each REO Property (or, in the case of a Loan Combination Mortgaged Property if
it has become an REO Property, the Trust's interest therein) remaining in the
Trust Fund as provided in Section 9.01, the Trust Fund (and, accordingly, REMIC
I and REMIC II) shall be terminated in accordance with the following additional
requirements, unless the
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Person effecting the purchase obtains at its own expense and delivers to the
Trustee, an Opinion of Counsel, addressed to the Trustee, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 9.02
will not result in the imposition of taxes on "prohibited transactions" of REMIC
I or REMIC II as defined in Section 860F of the Code or cause either of REMIC I
or REMIC II to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) the Trustee shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I and REMIC II 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 regulations thereunder as set forth
in the Opinion of Counsel obtained pursuant to Section 9.01 from the party
effecting the purchase of all the Trust Mortgage Loans and REO Property
remaining in the Trust Fund;
(ii) during such 90-day liquidation period and at or
prior to the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Master Servicer,
the Special Servicer or the Plurality Subordinate Certificateholder, as
applicable, for cash; and
(iii) at the time of the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I and REMIC II shall terminate at that time.
(b) In the event the Trust Fund is to be terminated while a Swap
Agreement is still in effect, the Trustee shall promptly notify the related Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of such Swap Agreement shall be reduced to zero on
such date. Based on the date of termination, the Trustee, prior to any final
distributions to the Holders of the Class A-3FL Certificates and/or the Holders
of the Class AN-FL Certificates as contemplated by Section 9.01, shall pay the
Class A-3FL Net Fixed Swap Payment, if any, to the Class A-3FL Swap Counterparty
and/or the Class AN-FL Net Fixed Swap Payment, if any, to the Class AN-FL Swap
Counterparty.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each of REMIC I and REMIC II, which authorization shall be binding upon all
successor Certificateholders.
SECTION 9.03. Non-Trust Mortgage Loans.
References to "REO Property" and "REO Properties" in Sections 9.01
and 9.02 shall be deemed to include the Trust's rights with respect to any REO
Property relating to the A-Note Trust Mortgage Loan and such rights shall be
taken into account in calculating the Purchase Price.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I
and REMIC II as a REMIC under the Code and, if necessary, under applicable state
law. Such election will be made on Form 1066 or other appropriate federal or
state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) in
REMIC I, and the Regular Certificates, the Class A-3FL REMIC II Regular Interest
and Class AN-FL REMIC II Regular Interest are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC II;
provided that the Class X Certificates shall evidence multiple "regular
interests" in REMIC II. The Class R-I Certificates and the Class R-II
Certificates are hereby designated as the single class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code) in REMIC I and REMIC II,
respectively. None of the Master Servicer, the Special Servicer, the Trustee
shall (to the extent within its control) permit the creation of any other
"interests" in REMIC I and REMIC II (within the meaning of Treasury regulation
Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day"
of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
The "latest possible maturity date" of the REMIC I Regular Interests, the
Regular Certificates (exclusive of the Class X Certificates), the Class X
Components, the Class A-3FL REMIC II Regular Interest and the Class AN-FL REMIC
II Regular Interest shall be the Rated Final Distribution Date.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, and shall act on behalf of the related REMIC in
relation to any tax matter or controversy and shall represent the related REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority; provided that the REMIC Administrator is
hereby irrevocably appointed to act and shall act as agent and attorney-in-fact
for the Tax Matters Person for each of REMIC I and REMIC II in the performance
of its duties as such.
(e) Except as otherwise provided in Section 3.17(a) and
subsections (i) and (j) below, the REMIC Administrator shall pay out of its own
funds any and all routine tax administration expenses of the Trust Fund incurred
with respect to each of REMIC I and REMIC II (but not including any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to the Trust Fund that involve the Internal Revenue Service or
state tax authorities, which extraordinary expenses shall be payable or
reimbursable to the Trustee from the Trust Fund unless otherwise provided in
Section 10.01(h) or 10.01(i)).
(f) Within 30 days after the Closing Date, the REMIC
Administrator shall obtain taxpayer identification numbers for each of REMIC I
and REMIC II by preparing and filing Internal Revenue Service Forms SS-4 and
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMICs) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, cause the Trustee to sign and file all of the other
Tax Returns in respect of REMIC I and
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REMIC II. The expenses of preparing and filing such returns shall be borne by
the REMIC Administrator without any right of reimbursement therefor. The other
parties hereto shall provide on a timely basis to the REMIC Administrator or its
designee such information with respect to each of REMIC I and REMIC II as is in
its possession and reasonably requested by the REMIC Administrator to enable it
to perform its obligations under this Article. Without limiting the generality
of the foregoing, the Depositor, within 10 days following the REMIC
Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, as to the valuations and issue prices of the
Certificates, and the REMIC Administrator's duty to perform its reporting and
other tax compliance obligations under this Article X shall be subject to the
condition that it receives from the Depositor such information possessed by the
Depositor that is necessary to permit the REMIC Administrator to perform such
obligations.
(g) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate or agent of a Non-Permitted Transferee, such information as
is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I and REMIC II.
(h) The REMIC Administrator shall perform its duties hereunder
so as to maintain the status of each of REMIC I and REMIC II and as a REMIC
under the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special
Servicer, or the Trustee shall knowingly take (or cause REMIC I or REMIC II to
take) any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could be
reasonably be expected to (i) endanger the status of REMIC I or REMIC II as a
REMIC, or (ii) except as provided in Section 3.17(a), result in the imposition
of a tax upon either REMIC I or REMIC II (including, but not limited to, the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code or the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code (any
such endangerment or imposition or, except as provided in Section 3.17(a),
imposition of a tax, an "Adverse REMIC Event")), unless the REMIC Administrator
has obtained or received an Opinion of Counsel (at the expense of the party
requesting such action or at the expense of the Trust Fund if the REMIC
Administrator seeks to take such action or to refrain from acting for the
benefit of the Certificateholders) to the effect that the contemplated action
will not result in an Adverse REMIC Event. The REMIC Administrator shall not
take any action or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the Special Servicer has advised it in
writing that either the Master Servicer or the Special Servicer has received or
obtained an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action with
respect to REMIC I or REMIC II, or causing either REMIC I or REMIC II to take
any action, that is not expressly permitted under the terms of this Agreement,
the Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an
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Adverse REMIC Event to occur. Neither the Master Servicer nor the Special
Servicer shall take any such action or cause either REMIC I or REMIC II to take
any such action as to which the REMIC Administrator has advised it in writing
that an Adverse REMIC Event could occur, and neither the Master Servicer nor the
Special Servicer shall have any liability hereunder for any action taken by it
in accordance with the written instructions of the REMIC Administrator. The
REMIC 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
expressly permitted by this Agreement, but in no event at the cost or expense of
the Trust Fund, the Trustee or the REMIC Administrator. At all times as may be
required by the Code, the REMIC Administrator shall make reasonable efforts to
ensure that substantially all of the assets of each of REMIC I and REMIC II will
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.
(i) If any tax is imposed on either of REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I or REMIC II 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)), 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 REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X provided that no
liability shall be imposed upon the REMIC Administrator under this clause if
another party has responsibility for payment of such tax under clauses (iii) or
(v) of this Section; (ii) the Special Servicer, if such tax arises out of or
results from a breach by the Special Servicer of any of its obligations under
Article III or this Article X; (iii) the Master Servicer, if such tax arises out
of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Article X; (iv) the Trustee, if such tax arises out of
or results from a breach by the Trustee, of any of its respective obligations
under Article IV, Article VIII or this Article X; or (v) the Trust Fund,
excluding the portion thereof constituting Grantor Trust A-3FL, Grantor Trust
AN-FL and Grantor Trust Z, in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust Fund. Any such amounts payable by the Trust Fund shall be
paid by the Trustee upon the written direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account in reduction of the Available
Distribution Amount pursuant to Section 3.05(b).
(j) The REMIC Administrator shall, for federal income tax
purposes, maintain books and records with respect to each of REMIC I and REMIC
II on a calendar year and on an accrual basis.
(k) Following the Startup Day, none of the Trustee, the Master
Servicer, or the Special Servicer shall accept any contributions of assets to
REMIC I or REMIC II 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, the Trustee) to the effect that the inclusion of such
assets in such REMIC will not cause: (i) such REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding; or (ii) the imposition
of any tax on such REMIC under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(l) None of the Trustee, the Master Servicer, the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Trust Mortgage Loans
(except in connection with (A) the default or foreclosure of a Trust Mortgage
Loan, including, but not limited to, the sale or other disposition of a
Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of REMIC I or REMIC II, (C) the termination of REMIC I and
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REMIC II pursuant to Article IX of this Agreement, or (D) a purchase of Trust
Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the Collection
Account, the Distribution Account or an REO Account for gain; or (iii) the
acquisition of any assets on behalf of REMIC I or REMIC II (other than (1) a
Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure or
otherwise in respect of a Trust Defaulted Mortgage Loan, (2) a Qualified
Substitute Mortgage Loan pursuant to Article II hereof and (3) Permitted
Investments acquired in connection with the investment of funds in the
Collection Account, any Loan Combination Custodial Account, the Distribution
Account or an REO Account); 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 but in no event at the expense of the Trust Fund, the Trustee) to
the effect that such sale, disposition, or acquisition will not cause: (x)
either of REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (y) the imposition of any tax on REMIC I or
REMIC II under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(m) Except as permitted by Section 3.17(a), none of the Trustee,
the Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I or REMIC II will receive a fee or other compensation for services
nor permit REMIC I or REMIC II 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.
SECTION 10.02. Grantor Trust Administration.
(a) The REMIC Administrator shall treat each of Grantor Trust
A-3FL, Grantor Trust AN-FL and Grantor Trust Z for tax return preparation
purposes, as a "grantor trust" under the Code and shall treat (i) the Class
A-3FL REMIC II Regular Interest and distributions thereon, the Class A-3FL Swap
Agreement and payments by the Class A-3FL Swap Counterparty thereunder and the
Class A-3FL Sub-Account as separate assets of Grantor Trust A-3FL, (ii) the
Class AN-FL REMIC II Regular Interest and distributions thereon, the Class AN-FL
Swap Agreement and payments by the Class AN-FL Swap Counterparty thereunder and
the Class AN-FL Sub-Account as separate assets of Grantor Trust AN-FL, and (iii)
the Additional Interest, the Additional Interest Account and amounts held from
time to time in the Additional Interest Account that represent Additional
Interest as separate assets of Grantor Trust Z, and in each case (clauses (i)
through (iii) above) not of REMIC I or REMIC II, as permitted by Treasury
Regulations Section 1.860G-2(i)(1). The Class A-3FL Certificates are hereby
designated as representing an undivided beneficial ownership interest in Grantor
Trust A-3FL. The Class AN-FL Certificates are hereby designated as representing
an undivided beneficial ownership interest in Grantor Trust AN-FL. The Class Z
Certificates are hereby designated as representing an undivided beneficial
interest in Additional Interest payable on the Trust Mortgage Loans and proceeds
thereof.
(b) The REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to Grantor Trust A-3FL, Grantor Trust AN-FL and Grantor Trust Z (but not
including any professional fees or expenses related to audits or any
administrative or judicial proceedings with respect to the Trust Fund that
involve the Internal Revenue Service or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the REMIC
Administrator from the Trust Fund unless otherwise provided in Section 10.02(e)
or 10.02(f)).
(c) The REMIC Administrator shall prepare, cause the Trustee to
sign and file when due all of the Tax Returns in respect of Grantor Trust A-3FL,
Grantor Trust AN-FL and Grantor Trust Z. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the
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REMIC Administrator or its designee such information with respect to Grantor
Trust A-3FL, Grantor Trust AN-FL and Grantor Trust Z as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Section 10.02. Without limiting the generality of the
foregoing, the Depositor, within 10 days following the REMIC Administrator's
request therefor, shall provide in writing to the REMIC Administrator such
information as is reasonably requested by the REMIC Administrator for tax
purposes, and the REMIC Administrator's duty to perform its reporting and other
tax compliance obligations under this Section 10.02 shall be subject to the
condition that it receives from the Depositor such information possessed by the
Depositor that is necessary to permit the REMIC Administrator to perform such
obligations.
(d) The REMIC Administrator shall furnish or cause to be
furnished to (i) the Holders of the Class Z Certificates, (ii) the Holders of
the Class A-3FL Certificates and (iii) the Holders of the Class AN-FL
Certificates, on the cash or accrual method of accounting, as applicable, such
information as to their respective portions of the income and expenses of
Grantor Trust A-3FL, Grantor Trust AN-FL or Grantor Trust Z, as the case may be,
as may be required under the Code, and shall perform on behalf of Grantor Trust
A-3FL, Grantor Trust AN-FL and Grantor Trust Z all reporting and other tax
compliance duties that are required in respect thereof under the Code, the
Grantor Trust Provisions or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority.
(e) The REMIC Administrator shall perform its duties hereunder
so as to maintain the status of each of Grantor Trust A-3FL, Grantor Trust AN-FL
and Grantor Trust Z as a "grantor trust" under the Grantor Trust Provisions (and
the Trustee, the Master Servicer and the Special Servicer shall assist the REMIC
Administrator to the extent reasonably requested by the REMIC Administrator and
to the extent of information within the Trustee's, the Master Servicer's or the
Special Servicer's possession or control). None of the REMIC Administrator,
Master Servicer, the Special Servicer or the Trustee shall knowingly take (or
cause any of Grantor Trust A-3FL, Grantor Trust AN-FL or Grantor Trust Z to
take) any action or fail to take (or fail to cause to be taken) any action that,
under the Grantor Trust Provisions, if taken or not taken, as the case may be,
could reasonably be expected to endanger the status of any of Grantor Trust
A-3FL, Grantor Trust AN-FL or Grantor Trust Z as a grantor trust under the
Grantor Trust Provisions (any such endangerment of grantor trust status, an
"Adverse Grantor Trust Event"), unless the REMIC Administrator has obtained or
received an Opinion of Counsel (at the expense of the party requesting such
action or at the expense of the Trust Fund if the REMIC Administrator seeks to
take such action or to refrain from taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties hereto shall take
any action or fail to take any action (whether or not authorized hereunder) as
to which the REMIC Administrator has advised it in writing that the REMIC
Administrator has received or obtained an Opinion of Counsel to the effect that
an Adverse Grantor Trust Event could result from such action or failure to act.
In addition, prior to taking any action with respect to any of Grantor Trust
A-3FL, Grantor Trust AN-FL or Grantor Trust Z or causing the Trust Fund to take
any action that is not expressly permitted under the terms of this Agreement,
the Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. Neither the Master Servicer
nor the Special Servicer shall have any liability hereunder for any action taken
by it in accordance with the written instructions of the REMIC Administrator.
The REMIC 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
expressly permitted by this Agreement, but in no event at the cost or expense of
the Trust Fund, the REMIC Administrator or the Trustee. Under no circumstances
may the REMIC Administrator vary the assets of any of Grantor Trust A-3FL,
Grantor Trust AN-FL or Grantor Trust Z so as to take advantage of variations in
the market so as to improve the
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rate of return of Holders of the Class Z Certificates, Holders of the Class
A-3FL Certificates or Holders of the Class AN-FL Certificates, as the case may
be.
(f) If any tax is imposed on any of Grantor Trust A-3FL, Grantor
Trust AN-FL and Grantor Trust Z, 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 REMIC Administrator, if such tax
arises out of or results from a breach by the REMIC Administrator of any of its
obligations under this Section 10.02; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Section 10.02; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article III or this Section 10.02; (iv) 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 10.02; or (v) the
portion of the Trust Fund constituting Grantor Trust A-3FL, Grantor Trust AN-FL
or Grantor Trust Z, as the case may be, in all other instances.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
agreement of the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent, without the consent of any of the Certificateholders, (i) to cure
any ambiguity, (ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein or with the description of
this Agreement set forth in the Prospectus or the Prospectus Supplement, (iii)
to add any other provisions with respect to matters or questions arising
hereunder which shall not be materially inconsistent with the existing
provisions hereof, (iv) to relax or eliminate 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, (v) to modify, eliminate
or add to the provisions of Section 5.02(d) or any other provision hereof
restricting transfer of the Residual Certificates by virtue of their being
"residual interests" in a REMIC provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is not a Permitted Transferee, (vi) to
relax or eliminate any requirement hereunder imposed by the Securities Act or
the rules thereunder if the Securities Act or those rules are amended or
clarified so as to allow for the relaxation or elimination of that requirement,
(vii) if such amendment, as evidenced by an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and otherwise at the expense of the party seeking such
amendment) delivered to the Master Servicer, the Special Servicer and the
Trustee, is advisable or reasonably necessary 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 REMIC I,
REMIC II or any grantor trust created hereunder at least from the effective date
of such amendment, or would be necessary 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 such REMIC or grantor trust
or (viii) to otherwise modify or delete existing provisions of this Agreement;
provided that no such amendment hereof that is covered solely by clause (iii) or
(viii) above may, as evidenced by an Opinion of Counsel (at the expense of the
Trust Fund, in the case of any amendment requested by the Master Servicer or
Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and otherwise at the expense of the party seeking such
amendment) obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee, adversely affect in any material respect the interests of any
Certificateholder or Non-Trust Noteholder; and provided, further, that no such
amendment may adversely affect the rights and/or interests of the Depositor
without its consent; and provided, further, that the Master Servicer, the
Special Servicer and the Trustee shall have first obtained from each Rating
Agency written confirmation that such amendment will not result in an Adverse
Rating Event; and provided, further, that no such amendment hereof that is
covered by any of clauses (i) through (ix) above may significantly change the
activities of the Trust.
(b) This Agreement may also be amended from time to time by the
agreement of the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 66-2/3% of the Voting Rights 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
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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 Trust Mortgage Loans that are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) as evidenced by an Opinion of Counsel obtained by or delivered
to the Master Servicer, the Special Servicer and the Trustee, adversely affect
in any material respect the interests of the Holders of any Class of
Certificates in a manner other than as described in (i) without the consent of
the Holders of all Certificates of such Class, (iii) modify the provisions of
this Section 11.01 without the consent of the Holders of all Certificates then
outstanding, (iv) modify the provisions of Section 3.20 without the consent of
the Holders of Certificates entitled to all of the Voting Rights, (v) modify the
definition of Servicing Standard or the specified percentage of Voting Rights
which are required to be held by Certificateholders to consent or not to object
to any particular action pursuant to any provision of this Agreement without the
consent of the Holders of all Certificates then outstanding, (vi) significantly
change the activities of the Trust without the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights, without regard to
any Certificates held by the Depositor or any of its Affiliates or agents, (vii)
amend defined terms contained in this Agreement as they relate to Section
2.01(d) or the repurchase and/or substitution obligations of any Mortgage Loan
Seller unless such Mortgage Loan Seller shall have agreed to such amendment in
writing, (viii) adversely affect, in any material respect, the rights and/or
interests of a Non-Trust Noteholder without its consent or (ix) adversely affect
the rights and/or interests of the Depositor without its consent.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, 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 matters described above as
they would if any other Person held such Certificates, so long as neither the
Depositor nor any of its Affiliates is performing servicing duties with respect
to any of the Trust Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement,
the Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
REMIC I or REMIC II pursuant to the REMIC Provisions or on Grantor Trust A-3FL,
Grantor Trust AN-FL or Grantor Trust Z or cause either of REMIC I or REMIC II to
fail to qualify as a REMIC or any of Grantor Trust A-3FL, Grantor Trust AN-FL or
Grantor Trust Z to fail to qualify as a grantor trust at any time that any
Certificates are outstanding and (ii) such amendment complies with the
provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder, the Swap
Counterparties and each Non-Trust Noteholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 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 of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
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(g) The cost of any Opinion of Counsel to be delivered pursuant
to Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that 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
11.01(a), (b) or (c) shall be payable out of the Collection Account or the
Distribution Account pursuant to Section 3.05.
(h) Notwithstanding anything to the contrary contained in this
Section 11.01, the parties hereto agree that (i) this Agreement may not be
amended except upon 10 days' prior written notice to the Swap Counterparties and
(ii) this Agreement may not be amended in any manner that has a material adverse
effect on a Swap Counterparty without first obtaining the written consent of
such Counterparty. The Trustee may obtain and rely upon an Opinion of Counsel
provided to it at the expense of the party seeking the amendment to the effect
that such action will not adversely affect in any material respect the interests
of a Swap Counterparty (or at the expense of the Trust if the Trustee is the
party seeking such amendment and such amendment benefits the
Certificateholders).
(i) The Trustee shall give the Depositor reasonable prior
written notice of any amendment sought to be entered into pursuant to subsection
(a) or (b) above.
SECTION 11.02. 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 Master Servicer at the expense of the Trust Fund or, to the
extent that it benefits one or more Non-Trust Noteholders, such Non-Trust
Noteholder(s), but only upon direction accompanied by an Opinion of Counsel (the
cost of which may be paid out of the Collection Account pursuant to Section
3.05(a) or, to the extent that it benefits such Non-Trust Noteholder(s), out of
the related Loan Combination Custodial Account pursuant to Section 3.05(e)) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders and/or one or more Non-Trust Noteholders;
provided, however, that the Trustee shall have no obligation or responsibility
to determine whether any such recordation of this Agreement is required.
(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 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder'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 Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for
herein) shall have any right to vote 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 from time
to time as partners or
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members of an association; nor shall any Certificateholder 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 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 Trust
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder 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 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 the Holders of any other of such 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, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law; Waiver of Trial By Jury
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws. The
parties hereunder each irrevocably waive, to the extent permitted by applicable
law, all right to trial by jury in any action, claim, suit, proceeding or
counterclaim (whether based on contract, tort or otherwise) relating to or
arising out of this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to:
(i) in the case of the Depositor, Xxxxxxx Xxxxx Mortgage
Investors, Inc., 4 World Financial Center, 12th Floor, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx or Director, CMBS
Securitization, facsimile number: (000) 000-0000 (with a copy each to
Xxxxxxx XxXxxxxx and Xxxxxx X. Xxxxxxxx, Office of the General Counsel, 4
World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, facsimile number (000) 000-0000;
(ii) in the case of the Master Servicer, Wachovia Bank, National
Association, 0000 Xxxxxxxx Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1, facsimile number: (704)
715-0036;
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(iii) in the case of the Special Servicer, Midland Loan Services,
Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for
communications by United States mail), Attention: President, facsimile
number: (000) 000-0000;
(iv) in the case of the Trustee, LaSalle Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services Group--Xxxxxxx
Xxxxx Mortgage Investors, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-1, facsimile number: (000) 000-0000;
(vi) in the case of the Underwriters,
(A) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
4 World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx, Re: ML-CFC Commercial
Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, facsimile number: (000) 000-0000 (with
a copy each to Xxxxxxx XxXxxxxx and Xxxxxx Xxxxxxxx, Office of
General Counsel, 4 World Financial Center, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile number: (000) 000-0000);
(B) Countrywide Securities Corporation, 0000 Xxxx
Xxxxxxx - XXXX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxx, Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1, facsimile number:
(000) 000-0000;
(C) EHY Securities (USA), LLC, Eurohypo AG, New York
Branch, 1114 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Head of Portfolio Operations, facsimile number:
(000) 000-0000, Re: ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1, with a
copy to Head of Xxxxx Xxxxxxxxxx, Xxxxxxxx XX, Xxx Xxxx Xxxxxx, 0000
Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
facsimile number (000) 000 0000;
(D) (iv) Banc of America Securities LLC, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
facsimile number: (000) 000-0000, Re: ML-CFC Commercial Mortgage
Trust 2006-1, Commercial Mortgage Pass-Through Certificates, Series
2006-1;
(E) Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, Re: ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1 (with a copy to Xxxxxxxx Xxxxx, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000); and
(F) Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (facsimile number: (000) 000-0000), Attention Xxxxx
Xxxxxx, Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1 (with a copy to
Xxxxx Xxxxxxxxxx, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(facsimile number: (000) 000-0000).
(vii) in the case of the Rating Agencies,
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(A) Fitch, Inc., Commercial Mortgage Backed Securities,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Surveillance, facsimile number: (000) 000-0000, Re: ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1;
(B) Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: CMBS Surveillance Group,
facsimile number: (000) 000-0000, Re: ML-CFC Commercial Mortgage
Trust 2006-1, Commercial Mortgage Pass-Through Certificates, Series
2006-1; and
(C) Dominion Bond Rating Service, Inc., 000 X. Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: CMBS
Surveillance, facsimile number: (000) 000-0000, Re: ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1;
(viii) in the case of the initial Controlling Class Representative,
Anthracite Capital, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxx or Xxxx Xxxxxxxx facsimile number: (000) 000-0000,
Re: MLCFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1;
or as to each such Person such other address 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.
SECTION 11.06. 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
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or
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cease to apply to this Agreement or be construed by judicial decision to be
inapplicable, said Section 126 shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
of the Sub-Servicers that is a party to a Sub-Servicing Agreement in effect on
the Closing Date (or being negotiated as of the Closing Date and in effect
within 90 days thereafter) 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 Sub-Servicer as a third party beneficiary pursuant to this
Section 11.09 shall be against a successor Master Servicer solely in its
corporate capacity and no Sub-Servicer shall have any rights or claims against
the Trust Fund or any party hereto (other than a successor Master Servicer in
its corporate capacity as set forth in this Section 11.09) as a result of any
rights conferred on such Sub-Servicer as a third party beneficiary pursuant to
this Section 11.09. Each Non-Trust Noteholder and any designee thereof acting on
behalf of or exercising the rights of such Non-Trust Noteholder shall be a third
party beneficiary to this Agreement with respect to its rights as specifically
provided for herein and under the related Loan Combination Intercreditor
Agreement and each Swap Counterparty is an intended third-party beneficiary
hereunder. This Agreement may not be amended in any manner that would adversely
affect the rights of any third party beneficiary hereof without its consent. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10. 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 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency and the Controlling Class Representative (and, if affected thereby, any
Non-Trust Noteholder) with respect to each of the following of which it 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 or termination of the Trustee, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Trust Mortgage Loans by any of the
Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase
Agreement;
(v) any change in the location of the Distribution
Account;
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(vi) the final payment to any Class of
Certificateholders; and
(vii) any sale or disposition of any Trust Mortgage Loan
or REO Property.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency (and, if affected thereby, any Non-Trust Noteholder) with respect
to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Collection
Account.
(c) The Special Servicer shall furnish each Rating Agency and
the Controlling Class Representative (and, with respect to a Loan Combination,
the related Non-Trust Noteholder(s)) with respect to a Trust Specially Serviced
Mortgage Loan such information as the Rating Agency or Controlling Class
Representative (and, with respect to a Loan Combination, the related Non-Trust
Noteholder(s)) shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and
the Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance
described in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the
Trustee pursuant to Section 3.03(e), 4.03(c) or 3.08.
(e) The Trustee shall (i) make available to each Rating Agency
and the Controlling Class Representative, upon reasonable notice, the items
described in Section 3.15(a) and (ii) promptly deliver to each Rating Agency and
the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Trust Mortgage Loans and the Certificates, to the extent such party
possesses such information, as such Rating Agency shall reasonably request.
(g) The Master Servicer shall give each Rating Agency at least
15 days' notice prior to any reimbursement to it of Nonrecoverable Advances from
amounts in the Collection Account allocable to interest on the Trust Mortgage
Loans unless (1) the Master Servicer determines in its sole discretion that
waiting 15 days after such a notice could jeopardize the Master Servicer's
ability to recover Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer that could affect or
cause a determination of whether any Advance is a Nonrecoverable Advance,
whether to defer reimbursement of a Nonrecoverable Advance or the determination
in clause (1) above, or (3) the Master Servicer has not timely received from the
Trustee information requested by the Master Servicer to consider in determining
whether to defer reimbursement of a Nonrecoverable Advance; provided that, if
clause (1), (2) or (3) apply, the Master Servicer shall give each Rating Agency
notice of an anticipated reimbursement to it of Nonrecoverable Advances from
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amounts in the Collection Account allocable to interest on the Trust Mortgage
Loans as soon as reasonably practicable in such circumstances. The Master
Servicer shall have no liability for any loss, liability or expense resulting
from any notice provided to any Rating Agency contemplated by the immediately
preceding sentence.
(h) Notwithstanding any provision herein to the contrary, each
of the Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
SECTION 11.12. 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 11.01. 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.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
POOLING AND SERVICING AGREEMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of March, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxx, known to me to be a Vice
President of XXXXXXX XXXXX MORTGAGE INVESTORS, INC., 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.
/s/ Valencia Love
---------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 27th day of March, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxx, known to me to be an
Associate of WACHOVIA BANK, NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of 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.
/s/ Xxxxx X. Xxxx
---------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX )
On the 28th day of March, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a
Senior Vice President of MIDLAND LOAN SERVICES, INC., 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.
/s/ Xxxxx Xxxxxx
---------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 28th day of March, 2006, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxxxxx, known to me to be an
Assistant Vice President of LASALLE BANK NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of 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.
/s/ Xxxxxx Xxx
---------------------------------------
Notary Public
[Notarial Seal]
POOLING AND SERVICING AGREEMENT
SCHEDULE I
MORTGAGE LOAN SCHEDULE
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE STREET ADDRESS CITY
------ ---------------------------------- ---------- ------------ ------------------------------ ------------------
1 Galileo NXL Retail Portfolio 3 MLML Retail Various Various
1.01 San Dimas Plaza MLML Retail 853-1073 West Arrow Highway San Dimas
1.02 The Crossing at Fry Road MLML Retail 0000 Xxx Xxxx Katy
1.03 Xxxxx Xxxx MLML Retail 0000-0000 Xxxxx Xxxx Xxxxxxxxxxxx
1.04 Fashion Corner MLML Retail 0000-0000 Xxx Xxxx Saginaw
1.05 Bristol Plaza MLML Retail 0000 Xxxxxx Xxxx Xxxxxxx
1.06 Xxxxx Plaza MLML Retail 00000 XX 0000 Xxxx Xxxxxxx
1.07 XxXxxxxx Plaza MLML Retail 0000 Xxxxx XxXxxxxx Xxxxxxx Xxxxxxx
1.08 Green River Plaza MLML Retail 399 Campbellsville By Pass Campbellsville
1.09 Stratford Commons MLML Retail 000 Xxxxxxxxx Xxxxxxx Court Winston-Salem
1.10 Hunting Hills MLML Retail 0000 Xxxxxxxx Xxxx Xxxxxxxxx Roanoke
1.11 Tomball Parkway Plaza MLML Retail 00000 Xxxxxxx Xxxxxxx Tomball
1.12 Wisteria Village MLML Retail 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx
1.13 Paradise Plaza MLML Retail 0000 Xxxxx Xxxx Paradise
1.14 Kmart Plaza MLML Retail 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxx
1.15 Packard Plaza MLML Retail 0000 Xxxxx Xxxxxxx Xxxxxx Cudahy
1.16 Northside Plaza MLML Retail 0000 Xxxxxxxxx Xxxxxxx Xxxxxx
1.17 University Mall MLML Retail 0000 XX Xxxxxxx 00 Xxxxxx
2 Kenwood Towne Centre MLML Retail 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxx
3 60 State Street MLML Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx
0 00 Xxxxx Xxxxxx Eurohypo Office 00 Xxxxx Xxxxxx Xxxxxx
0 Xxxxxxx Hotel Portfolio 2 MLML Hospitality Various Various
4.01 Courtyard Xxxxxx Airport MLML Hospitality 0000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx
4.02 Radisson Indianapolis Downtown MLML Hospitality 00 Xxxx Xxxx Xxxxxx Indianapolis
4.03 Embassy Suites Palm Beach MLML Hospitality 0000 XXX Xxxxxxxxx Xxxx Xxxxx Xxxxxxx
4.04 Hilton St. Petersburg MLML Hospitality 000 Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx
4.05 Hilton Nassau - Houston MLML Hospitality 0000 Xxxx Xxxx One Houston
5 Ashford Hotel Portfolio 3 MLML Hospitality Various Various
5.01 Crowne Plaza Xxxxxxx Hills MLML Hospitality 0000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx
5.02 Radisson Fort Worth MLML Hospitality 000 Xxxx Xxxxxx Xxxx Xxxxx
5.03 SpringHill Suites Gaithersburg MLML Hospitality 0000 Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
5.04 Courtyard Fort Lauderdale MLML Hospitality 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
5.05 SpringHill Suites Centreville MLML Hospitality 0000 Xxxxxxx Xxxxxxx Centreville
6 Lakewood Apartments CRF Multifamily 000 Xxxx Xxxx Xxxxx Xxx Xxxxxxxxx
7 Lightstone Portfolio CRF Retail Various Various
7.01 00xx Xxxxxx Plaza CRF Retail 0000 Xxxxxxxx Xxxx Xxxxxx
7.02 Monroe Plaza CRF Retail 00 Xxxxx 0xx Xxxxxx Xxxxxxxxxxx
7.03 New Smyrna Beach Shopping Center CRF Retail 0000 Xxxxx Xxxxx Xxxxxxx New Smryna Beach
7.04 Mountainville Shopping Center CRF Retail 0000 Xxxxx 0xx Xxxxxx Xxxxxxxxx
7.05 Martintown Plaza CRF Retail 000 Xxxx Xxxxxxxxx Xxxx Xxxxx Augusta
7.06 Birney Mall CRF Retail 0000 Xxxxxx Xxxxxx Moosic
7.07 Shillington Xxxxx XXX Xxxxxx 0 Xxxxxxxx Xxxxxx Reading
7.08 Cloud Springs Plaza CRF Retail 0000 Xxxxxxxxx Xxxx Xxxx Xxxxxxxxxx
7.09 Home Depot CRF Retail 0000 Xxxx Xxxxx Xxxxxx Dothan
7.10 Dunmore Plaza CRF Retail 0000 Xxxxxx Xxxxxx Dunmore
7.11 Kings Fairground Plaza CRF Retail 000 Xxxxx Xxxxxx Xxxx Danville
8 CNL-Cirrus MOB Portfolio II CRF Various Various Various
8.01 Ballas Medical Xxxxx XXX Xxxxxx 000 Xxxxx Xxx Xxxxxx Xxxx Creve Coeur
8.02 North Texas Hospital CRF Other 0000 Xxxxxxx Xxxx Xxxxxx
8.03 Xxxxxx Medical Plaza CRF Office 3320 and 0000 Xxxxx 0xx Xxxxxx Xxxxxxx
8.04 Baylor Health Center at Lake Xxxxx XXX Xxxxxx 0000 Xxxx Xxxxx Xxxxxxx Grand Prairie
8.05 Midlothian Healthcare Xxxxxx XXX Xxxxxx 0000 Xxxxx Xxxxxxxxxx Xxxxxxx Midlothian
8.06 XxXxx Health Center CRF Office 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
9 Sprint Data Center MLML Industrial 0000 Xxxxx Xxxxxx Xxxxx Xxxxx
10 Prince Georges Center II CRF Office 0000 Xxxx Xxxx Xxxxxxx Xxxxxxxxxxx
11 Inglewood Park CRF Various Various Largo
11.01 Inglewood 2 CRF Office 0000 XxXxxxxxx Xxxxx Largo
11.02 Inglewood 1 CRF Office 9200 Basil Court Largo
11.03 Inglewood 6 CRF Industrial 0000 Xxxxxxx Xxxxx Largo
11.04 Inglewood 5 CRF Industrial 0000 XxXxxxxxx Xxxxx Largo
11.05 Inglewood 4 CRF Industrial 0000 XxXxxxxxx Xxxxx Largo
11.06 Inglewood 7 CRF Industrial 0000 Xxxxxxx Xxxxx Largo
11.07 Inglewood 3 CRF Industrial 0000 Xxxxxxxxxx Xxxxx Largo
12 East Thunderbird Square MLML Retail 00000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx
13 Ashford Center & Peachtree Ridge CRF Office Various Various
13.01 Ashford Center CRF Office 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
13.02 Peachtree Ridge CRF Xxxxxx 0000 Xxxxxxx Xxxx Xxxxxxxx
00 Xxxxxxx Xxxxxx CRF Xxxxxx 00 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx CRF Office 60, 100, 200, 300, 400 and 000 Xxxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxxx
00 Xxxxx Xxxxxxxx Plaza MLML Retail 0000 Xxxxx Xxxxxxxx Xxxxxx Reno
00 Xxxxxxx Xxxxxx XXXX Retail 0000 Xxxxxxx Xxxxxx Xxxx
18 Colonial Mall Xxxxx Place CRF Retail 000 Xxxx Xxxxxxxxx Xxxxxxxxx
19 Lullwater at Bass Apartments CRF Multifamily 0000 Xxxx Xxxx Xxxxx
20 U Stor It Self Storage Portfolio CRF Self Storage Various Various
20.01 0000 Xxxx 00xx Xxxxxx CRF Self Storage 0000 Xxxx 00xx Xxxxxx Xxxxxxx
CUT-OFF DATE ORIGINAL
LOAN # PROPERTY NAME ORIGINATOR COUNTY STATE ZIP CODE BALANCE ($) BALANCE ($)
------ ---------------------------------- ---------- --------------- ------- -------- ------------ -----------
1 Galileo NXL Retail Portfolio 3 MLML Various Various Various 173,000,000 173,000,000
1.01 Xxx Xxxxx Xxxxx XXXX Xxx Xxxxxxx XX 00000 23,028,042 23,028,042
1.02 The Crossing at Xxx Xxxx XXXX Xxxxxx XX 00000 18,481,104 18,481,104
1.03 Xxxxx Xxxx XXXX Xxxxxxxx XX 00000 17,289,366 17,289,366
1.04 Xxxxxxx Xxxxxx XXXX Xxxxxxx XX 00000 14,667,543 14,667,543
1.05 Xxxxxxx Xxxxx XXXX Xxxxx XX 00000 13,200,788 13,200,788
1.06 Xxxxx Xxxxx XXXX Xxxxxx XX 00000 9,973,929 9,973,929
1.07 XxXxxxxx Xxxxx XXXX Xxxx XX 00000 9,313,890 9,313,890
1.08 Xxxxx Xxxxx Xxxxx XXXX Xxxxxx XX 00000 9,240,552 9,240,552
1.09 Xxxxxxxxx Xxxxxxx XXXX Xxxxxxx XX 00000 8,235,825 8,235,825
1.10 Hunting Hills XXXX Xxxxxxx XX 00000 8,213,824 8,213,824
1.11 Xxxxxxx Xxxxxxx Xxxxx XXXX Xxxxxx XX 00000 7,773,798 7,773,798
1.12 Xxxxxxxx Xxxxxxx XXXX Xxxxxxxx XX 00000 7,700,460 7,700,460
1.13 Xxxxxxxx Xxxxx XXXX Xxxxx XX 00000 7,363,106 7,363,106
0.00 Xxxxx Xxxxx XXXX Xxxxxx XX 00000 6,673,732 6,673,732
1.15 Xxxxxxx Xxxxx XXXX Xxxxxxxxx XX 00000 4,766,951 4,766,951
1.16 Xxxxxxxxx Xxxxx XXXX Xxxxxxxxx XX 00000 4,510,269 4,510,269
1.17 Xxxxxxxxxx Xxxx XXXX Xxxxx Xxxxxxxx XX 00000 2,566,820 2,566,820
0 Xxxxxxx Xxxxx Xxxxxx XXXX Xxxxxxxx XX 00000 146,493,391 147,000,000
3 00 Xxxxx Xxxxxx XXXX Xxxxxxx XX 00000 65,000,000 65,000,000
3 00 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000 65,000,000 65,000,000
4 Ashford Hotel Portfolio 2 MLML Various Various Various 115,645,000 115,645,000
4.01 Courtyard Xxxxxx Xxxxxxx XXXX Xxxxxxxxx XX 00000 32,477,154 32,477,154
4.02 Xxxxxxxx Xxxxxxxxxxxx Xxxxxxxx XXXX Xxxxxx XX 00000 27,576,322 27,576,322
4.03 Xxxxxxx Xxxxxx Xxxx Xxxxx XXXX Xxxx Xxxxx XX 00000 19,310,740 19,310,740
4.04 Xxxxxx Xx. Xxxxxxxxxx XXXX Xxxxxxxx XX 00000 19,091,300 19,091,300
4.05 Hilton Nassau - Houston XXXX Xxxxxx XX 00000 17,189,485 17,189,485
5 Ashford Hotel Portfolio 3 MLML Various Various Various 95,905,000 95,905,000
5.01 Crowne Plaza Xxxxxxx Hills MLML Xxx Xxxxxxx XX 00000 32,837,331 32,837,331
5.02 Radisson Xxxx Xxxxx XXXX Xxxxxxx XX 00000 22,224,798 22,224,798
5.03 XxxxxxXxxx Xxxxxx Xxxxxxxxxxxx XXXX Xxxxxxxxxx XX 00000 16,080,295 16,080,295
5.04 Courtyard Xxxx Xxxxxxxxxx XXXX Xxxxxxx XX 00000 15,380,483 15,380,483
5.05 XxxxxxXxxx Xxxxxx Xxxxxxxxxxx XXXX Xxxxxxx XX 00000 9,382,094 9,382,094
0 Xxxxxxxx Xxxxxxxxxx XXX Xxx Xxxxxxxxx XX 00000 62,300,000 62,300,000
7 Lightstone Portfolio CRF Various Various Various 59,165,938 59,350,000
7.01 00xx Xxxxxx Xxxxx XXX Xxxxxxxxxxx XX 00000 13,889,790 13,933,000
7.02 Xxxxxx Xxxxx XXX Xxxxxx XX 00000 7,950,267 7,975,000
7.03 Xxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxx XXX Xxxxxxx XX 00000 6,255,539 6,275,000
7.04 Xxxxxxxxxxxxx Xxxxxxxx Xxxxxx XXX Xxxxxx XX 00000 6,096,745 6,115,712
7.05 Xxxxxxxxxx Xxxxx XXX Xxxxx XX 00000 5,857,242 5,875,464
7.06 Xxxxxx Xxxx XXX Xxxxxxxxxx XX 00000 5,582,633 5,600,000
7.07 Xxxxxxxxxxx Xxxxx XXX Xxxxx XX 00000 4,810,036 4,825,000
7.08 Cloud Xxxxxxx Xxxxx XXX Xxxxxxx XX 00000 3,474,192 3,485,000
7.09 Home Depot XXX Xxxxxxx XX 00000 3,233,447 3,243,506
7.10 Xxxxxxx Xxxxx XXX Xxxxxxxxxx XX 00000 1,420,291 1,424,709
7.11 Xxxxx Xxxxxxxxxx Xxxxx XXX Xxxxxxxxxxxx XX 00000 595,756 597,609
8 CNL-Cirrus MOB Portfolio II CRF Various Various Various 56,330,000 56,330,000
8.01 Ballas Xxxxxxx Xxxxx XXX Xx. Xxxxx XX 00000 19,670,000 19,670,000
8.02 Xxxxx Xxxxx Xxxxxxxx XXX Xxxxxx XX 00000 15,730,000 15,730,000
8.03 Xxxxxx Xxxxxxx Xxxxx XXX Xxxxxxxx XX 00000 7,865,000 7,865,000
8.04 Baylor Health Center at Xxxx Xxxxx XXX Xxxxxxx XX 00000 5,135,000 5,135,000
8.05 Xxxxxxxxxx Xxxxxxxxxx Xxxxxx XXX Xxxxx XX 00000 5,135,000 5,135,000
8.06 XxXxx Xxxxxx Xxxxxx XXX Xxxxxxxx XX 00000 2,795,000 2,795,000
0 Xxxxxx Xxxx Xxxxxx XXXX Xxxxx Xxxxx XX 00000 52,800,000 52,800,000
00 Xxxxxx Xxxxxxx Xxxxxx XX XXX Xxxxxx Xxxxxx'x XX 00000 43,360,868 43,500,000
00 Xxxxxxxxx Xxxx XXX Xxxxxx Xxxxxx'x XX 00000 43,300,000 43,300,000
11.01 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 10,425,000 10,425,000
11.02 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 10,285,000 10,285,000
11.03 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 5,850,000 5,850,000
11.04 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 4,560,000 4,560,000
11.05 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 4,300,000 4,300,000
11.06 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 4,300,000 4,300,000
11.07 Inglewood 0 XXX Xxxxxx Xxxxxx'x XX 00000 3,580,000 3,580,000
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX Xxxxxxxx XX 00000 33,400,000 33,400,000
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx XXX Xxxxxxx XX Various 30,915,000 30,915,000
13.01 Xxxxxxx Xxxxxx XXX XxXxxx XX 00000 15,494,216 15,494,216
13.02 Xxxxxxxxx Xxxxx XXX Xxxxxxxx XX 00000 15,420,784 15,420,784
00 Xxxxxxx Xxxxxx XXX Xxxxxx XX 00000 30,000,000 30,000,000
00 Xxxxxxxx Xxxxxx XXX Xxxx XX 00000 28,399,000 28,399,000
00 Xxxxx Xxxxxxxx Xxxxx XXXX Xxxxxx XX 00000 26,000,000 26,000,000
00 Xxxxxxx Xxxxxx XXXX Xxxxxx XX 00000 24,000,000 24,000,000
00 Xxxxxxxx Xxxx Xxxxx Xxxxx XXX Xxxxx XX 00000 22,888,004 23,000,000
00 Xxxxxxxxx xx Xxxx Xxxxxxxxxx XXX Xxxx XX 00000 21,750,000 21,750,000
20 U Stor It Self Storage Portfolio CRF Xxxx IL Various 21,270,000 21,270,000
20.01 0000 Xxxx 00xx Xxxxxx XXX Xxxx XX 00000 8,030,000 8,030,000
IO MONTHLY IO ANNUAL MONTHLY P&I DEBT ANNUAL P&I DEBT
LOAN # PROPERTY NAME ORIGINATOR DEBT SERVICE ($) DEBT SERVICE ($) SERVICE ($) SERVICE ($)
------ ---------------------------------- ---------- ---------------- ---------------- ---------------- ---------------
1 Galileo NXL Retail Portfolio 3 MLML 752,770.25 9,033,243.06
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 Xxxxxxxxxx Xxxx XXXX
0 Xxxxxxx Xxxxx Xxxxxx MLML 812,039.18 9,744,470.16
3 00 Xxxxx Xxxxxx XXXX 604,548.14 7,254,577.78
3 00 Xxxxx Xxxxxx Eurohypo 604,548.14 7,254,577.78
4 Ashford Hotel Portfolio 2 MLML 540,391.15 6,484,693.79 712,276.34 8,547,316.08
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML 448,149.19 5,377,790.29 590,694.48 7,088,333.76
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF 285,296.50 3,423,558.06 350,611.86 4,207,342.32
7 Lightstone Portfolio CRF 349,107.69 4,189,292.28
7.01 00xx Xxxxxx Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF 266,000.82 3,192,009.86 322,988.07 3,875,856.88
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML 238,612.00 2,863,344.00
00 Xxxxxx Xxxxxxx Xxxxxx II CRF 251,372.62 3,016,471.44
00 Xxxxxxxxx Xxxx XXX 218,409.41 2,620,912.92 258,770.82 3,105,249.84
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 147,956.97 1,775,483.69 184,291.25 2,211,495.00
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF 148,363.38 1,780,360.50 179,039.16 2,148,469.92
13.01 Ashford Center CRF
13.02 Xxxxxxxxx Xxxxx XXX
00 Xxxxxxx Xxxxxx CRF 150,815.97 1,809,791.67 178,901.91 2,146,822.92
15 Xxxxxxxx Center CRF 136,048.96 1,632,587.51 164,288.42 1,971,461.04
00 Xxxxx Xxxxxxxx Xxxxx XXXX 117,636.46 1,411,637.50 145,268.51 1,743,222.12
00 Xxxxxxx Xxxxxx XXXX 111,527.78 1,338,333.33 136,269.36 1,635,232.32
00 Xxxxxxxx Xxxx Xxxxx Xxxxx CRF 137,859.54 1,654,314.48
19 Lullwater at Bass Apartments CRF 96,110.33 1,153,323.96 119,835.02 1,438,020.24
20 U Stor It Self Storage Portfolio CRF 103,514.00 1,242,168.00 127,635.84 1,531,630.08
20.01 0000 Xxxx 00xx Xxxxxx CRF
INTEREST PRIMARY MASTER TRUSTEE AND SUB SERVICING
LOAN # PROPERTY NAME ORIGINATOR RATE % SERVICING FEE SERVICING FEE PAYING AGENT FEE FEE RATE
------ ---------------------------------- ---------- -------- ------------- ------------- ---------------- -------------
1 Galileo NXL Retail Portfolio 3 MLML 5.1500 0.0100 0.0100 0.0010
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 University Mall MLML
2 Kenwood Towne Centre MLML 5.25519 0.01000 0.01000 0.00100
3 00 Xxxxx Xxxxxx XXXX 0.0000 0.0100 0.0100 0.0010
3 00 Xxxxx Xxxxxx Xxxxxxxx 0.0000 0.0100 0.0100 0.0010
4 Ashford Hotel Portfolio 2 MLML 5.5306 0.0100 0.0100 0.0010
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML 5.5306 0.0100 0.0100 0.0010
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF 5.4200 0.0100 0.0100 0.0010
7 Lightstone Portfolio CRF 5.8230 0.0100 0.0100 0.0010
7.01 00xx Xxxxxx Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF 5.5890 0.0100 0.0100 0.0010
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML 5.4230 0.0100 0.0100 0.0010
00 Xxxxxx Xxxxxxx Xxxxxx II CRF 5.6600 0.0100 0.0100 0.0010
00 Xxxxxxxxx Xxxx XXX 0.0000 0.0100 0.0100 0.0010
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 0.0000 0.0100 0.0100 0.0010
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx XXX 5.6800 0.0100 0.0100 0.0010
13.01 Ashford Center CRF
13.02 Peachtree Ridge CRF
00 Xxxxxxx Xxxxxx XXX 0.0000 0.0100 0.0100 0.0010
15 Xxxxxxxx Center CRF 5.6700 0.0100 0.0100 0.0010
00 Xxxxx Xxxxxxxx Xxxxx XXXX 0.0000 0.0100 0.0100 0.0010
00 Xxxxxxx Xxxxxx XXXX 0.0000 0.0100 0.0100 0.0010
00 Xxxxxxxx Xxxx Xxxxx Xxxxx XXX 0.0000 0.0100 0.0100 0.0010
19 Lullwater at Bass Apartments CRF 5.2300 0.0100 0.0100 0.0010
20 U Stor It Self Storage Portfolio CRF 5.7600 0.0100 0.0100 0.0010
20.01 0000 Xxxx 00xx Xxxxxx CRF
NET
ADMIN. MORTGAGE MATURITY/ AMORT
LOAN # PROPERTY NAME ORIGINATOR FEE % RATE % ACCRUAL TYPE TERM REM. TERM ARD DATE TERM
------ ---------------------------------- ---------- ------ -------- ------------ ---- --------- --------- -----
1 Galileo NXL Retail Portfolio 3 MLML 0.021 5.1290 Actual/360 84 78 8/31/2012 0
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 University Mall MLML
2 Kenwood Towne Centre MLML 0.021 5.2342 Actual/360 60 57 12/1/2010 360
3 00 Xxxxx Xxxxxx XXXX 0.000 5.4830 Actual/360 60 60 3/1/2011 0
3 60 State Street Eurohypo 0.021 5.4830 Actual/360 60 60 3/1/2011 0
4 Ashford Hotel Portfolio 2 MLML 0.021 5.5096 Actual/360 121 119 2/1/2016 300
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML 0.021 5.5096 Actual/360 123 119 2/1/2016 300
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF 0.021 5.3990 Actual/360 120 118 1/8/2016 360
7 Lightstone Portfolio CRF 0.021 5.8020 Actual/360 120 117 12/8/2015 360
7.01 00xx Xxxxxx Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF 0.021 5.5680 Actual/360 120 119 2/8/2016 360
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML 0.021 5.4020 30/360 84 79 10/1/2012 0
10 Prince Georges Center II CRF 0.021 5.6390 Actual/360 120 117 12/8/2015 360
11 Inglewood Park CRF 0.021 5.9490 Actual/360 120 117 12/8/2015 360
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 0.021 5.2220 Actual/360 120 118 1/1/2016 360
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF 0.021 5.6590 Actual/360 120 118 1/8/2016 360
13.01 Ashford Center CRF
13.02 Peachtree Ridge CRF
14 Clinton Square CRF 0.021 5.9290 Actual/360 120 116 11/8/2015 360
15 Xxxxxxxx Center CRF 0.021 5.6490 Actual/360 120 119 2/8/2016 360
16 South Virginia Plaza MLML 0.021 5.3340 Actual/360 120 118 1/1/2016 360
00 Xxxxxxx Xxxxxx XXXX 0.021 5.4790 Actual/360 120 120 3/1/2016 360
18 Colonial Mall Xxxxx Place CRF 0.021 5.2314 Actual/360 60 57 12/8/2010 300
19 Lullwater at Bass Apartments CRF 0.021 5.2090 Actual/360 120 115 10/8/2015 360
20 U Stor It Self Storage Portfolio CRF 0.021 5.7390 Actual/360 60 58 1/8/2011 336
20.01 0000 Xxxx 00xx Xxxxxx CRF
ARD ENVIRONMENTAL
LOAN # PROPERTY NAME ORIGINATOR REM. AMORT TITLE TYPE ARD LOAN STEP UP INSURANCE
------ ---------------------------------- ---------- ---------- ------------- -------- --------------------- -------------
1 Galileo NXL Retail Portfolio 3 MLML 0 Fee/Leasehold No Yes
1.01 San Dimas Plaza MLML Fee Yes
1.02 The Crossing at Fry Road MLML Fee Yes
1.03 Xxxxx Xxxx MLML Fee Yes
1.04 Fashion Corner MLML Fee/Leasehold Yes
1.05 Bristol Plaza MLML Fee Yes
1.06 Xxxxx Plaza MLML Fee Yes
1.07 XxXxxxxx Plaza MLML Fee Yes
1.08 Green River Plaza MLML Fee Yes
1.09 Stratford Commons MLML Fee Yes
1.10 Hunting Hills MLML Fee Yes
1.11 Tomball Parkway Plaza MLML Fee Yes
1.12 Wisteria Village MLML Fee Yes
1.13 Paradise Plaza MLML Fee Yes
1.14 Kmart Plaza MLML Fee Yes
1.15 Packard Plaza MLML Fee Yes
1.16 Northside Plaza MLML Fee Yes
1.17 University Mall MLML Fee Yes
2 Kenwood Towne Centre MLML 357 Fee/Leasehold No Xx
0 00 Xxxxx Xxxxxx XXXX 0 Xxx/Xxxxxxxxx Xx No
3 60 State Street Eurohypo 0 Fee/Leasehold No No
4 Ashford Hotel Portfolio 2 MLML 300 Fee No No
4.01 Courtyard Xxxxxx Airport MLML Fee No
4.02 Radisson Indianapolis Downtown MLML Fee No
4.03 Embassy Suites Palm Beach MLML Fee No
4.04 Hilton St. Petersburg MLML Fee No
4.05 Hilton Nassau - Houston MLML Fee No
5 Ashford Hotel Portfolio 3 MLML 300 Fee/Leasehold No No
5.01 Crowne Plaza Xxxxxxx Hills MLML Fee No
5.02 Radisson Fort Worth MLML Fee/Leasehold No
5.03 SpringHill Suites Gaithersburg MLML Fee No
5.04 Courtyard Fort Lauderdale MLML Fee No
5.05 SpringHill Suites Centreville MLML Fee No
6 Lakewood Apartments CRF 360 Fee No No
7 Lightstone Portfolio CRF 357 Fee/Leasehold No No
7.01 25th Street Plaza CRF Fee No
7.02 Monroe Plaza CRF Fee No
7.03 New Smyrna Beach Shopping Center CRF Fee No
7.04 Mountainville Shopping Center CRF Fee No
7.05 Martintown Plaza CRF Leasehold No
7.06 Birney Mall CRF Fee No
7.07 Shillington Plaza CRF Fee No
7.08 Cloud Springs Plaza CRF Fee No
7.09 Home Depot CRF Fee/Leasehold No
7.10 Dunmore Plaza CRF Fee No
7.11 Kings Fairground Plaza CRF Leasehold No
8 CNL-Cirrus MOB Portfolio II CRF 360 Fee No No
8.01 Ballas Medical Plaza CRF Fee No
8.02 North Texas Hospital CRF Fee No
8.03 Xxxxxx Medical Plaza CRF Fee No
8.04 Baylor Health Center at Lake Ridge CRF Fee No
8.05 Midlothian Healthcare Center CRF Fee No
8.06 XxXxx Health Center CRF Fee No
9 Sprint Data Center MLML 0 Fee Yes Interest Rate plus 2% No
10 Prince Georges Center II CRF 357 Fee No No
11 Inglewood Park CRF 360 Fee No No
11.01 Inglewood 2 CRF Fee No
11.02 Inglewood 1 CRF Fee No
11.03 Inglewood 6 CRF Fee No
11.04 Inglewood 5 CRF Fee No
11.05 Inglewood 4 CRF Fee No
11.06 Inglewood 7 CRF Fee No
11.07 Inglewood 3 CRF Fee No
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 000 Fee No No
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF 360 Fee No No
13.01 Ashford Center CRF Fee No
13.02 Peachtree Ridge CRF Fee No
00 Xxxxxxx Xxxxxx CRF 360 Fee No No
15 Xxxxxxxx Center CRF 360 Fee No Xx
00 Xxxxx Xxxxxxxx Xxxxx XXXX 000 Fee No Xx
00 Xxxxxxx Xxxxxx XXXX 000 Fee No No
18 Colonial Mall Xxxxx Place CRF 297 Fee No No
19 Lullwater at Bass Apartments CRF 360 Fee No No
20 U Stor It Self Storage Portfolio CRF 336 Fee No No
20.01 0000 Xxxx 00xx Xxxxxx CRF Fee No
PARTIAL
CROSS CROSS DEFEASANCE LETTER OF LOCKBOX IN HOLDBACK
LOAN # PROPERTY NAME ORIGINATOR DEFAULTED COLLATERALIZED ALLOWED CREDIT PLACE AMOUNT
------ ---------------------------------- ---------- --------- -------------- ---------- --------- ---------- --------
1 Galileo NXL Retail Portfolio 3 MLML No No Yes No Yes
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 University Mall MLML
2 Kenwood Towne Centre MLML No No No No Yes
3 60 State Street MLML No No No No Yes
3 60 State Street Eurohypo No No No No Yes
4 Ashford Hotel Portfolio 2 MLML Yes (1) Yes (1) Yes No Yes
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML Yes (1) Yes (1) Yes No Yes
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF No No No No No
7 Lightstone Portfolio CRF No No Yes No No
7.01 25th Street Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF No No Yes No No
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML No No No No No
10 Prince Georges Center II CRF No No No No Yes
11 Inglewood Park CRF No No Yes No Yes
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
12 East Thunderbird Square MLML No No No Yes No
13 Ashford Center & Peachtree Ridge CRF No No No No Yes
13.01 Ashford Center CRF
13.02 Peachtree Ridge CRF
14 Clinton Square CRF No No No No Yes
15 Xxxxxxxx Center CRF No No No No Yes
16 South Virginia Plaza MLML No No No No Yes
00 Xxxxxxx Xxxxxx MLML No No No No No
18 Colonial Mall Xxxxx Place CRF No No No No Yes
19 Lullwater at Bass Apartments CRF No No No No No
20 U Stor It Self Storage Portfolio CRF No No Yes Yes Yes
20.01 0000 Xxxx 00xx Xxxxxx CRF
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
ENGINEERING CAPEX ENVIR. TI/LC RE TAX INS.
LOAN # PROPERTY NAME ORIGINATOR RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ---------------------------------- ---------- ----------- ----------- ----------- ----------- ----------- -----------
1 Galileo NXL Retail Portfolio 3 MLML 134,952 95,675 1,760,203 305,241
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 Xxxxxxxxxx Xxxx XXXX
0 Xxxxxxx Xxxxx Xxxxxx MLML
3 60 State Street MLML
3 00 Xxxxx Xxxxxx Xxxxxxxx
0 Xxxxxxx Hotel Portfolio 2 MLML 85,750 1,237 562,526 407,820
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML 62,350 1,237 135,697 345,389
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF 101,000 259,524 198,918
7 Lightstone Portfolio CRF 2,328,260 860,941 90,137
7.01 00xx Xxxxxx Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF 556,911
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML
10 Prince Georges Center II CRF 340,025
00 Xxxxxxxxx Xxxx XXX 10,000 193,333 61,660
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 117,668 2,242
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF 627,000 3,325,000 78,690 7,199
13.01 Ashford Center CRF
13.02 Peachtree Ridge CRF
00 Xxxxxxx Xxxxxx CRF 688,478 64,535
15 Xxxxxxxx Center CRF 1,000,000 2,120,000 95,563 7,240
00 Xxxxx Xxxxxxxx Xxxxx XXXX 1,662,524 25,548 18,801
00 Xxxxxxx Xxxxxx MLML
18 Colonial Mall Xxxxx Place CRF 2,214,733 42,149 17,324
19 Lullwater at Bass Apartments CRF 352,146 7,543
20 U Stor It Self Storage Portfolio CRF 160,980 2,403
20.01 0000 Xxxx 00xx Xxxxxx CRF
UPFRONT MONTHLY MONTHLY MONTHLY
OTHER CAPEX CAPEX TI/LC
LOAN # PROPERTY NAME ORIGINATOR RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($)
------ ---------------------------------- ---------- ----------- -------------------- --------------- -----------
1 Galileo NXL Retail Portfolio 3 MLML 667 29,804
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 Xxxxxxxxxx Xxxx XXXX
0 Xxxxxxx Xxxxx Xxxxxx MLML
3 60 State Street MLML
3 00 Xxxxx Xxxxxx Xxxxxxxx
0 Xxxxxxx Hotel Portfolio 2 MLML 4% of Gross Revenues
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML 42,925 4% of Gross Revenues
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF
7 Lightstone Portfolio CRF 28,565 16,938 73,398
7.01 00xx Xxxxxx Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML 3,333 40,000
00 Xxxxxx Xxxxxxx Xxxxxx II CRF 6,576
00 Xxxxxxxxx Xxxx XXX 5,350,000 7,038 33,959
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 38,409 2,685
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF 1,364,411 13,065
13.01 Ashford Center CRF
13.02 Peachtree Ridge XXX
00 Xxxxxxx Xxxxxx CRF 6,362 22,809
15 Xxxxxxxx Center CRF 6,322 25,288
00 Xxxxx Xxxxxxxx Xxxxx XXXX 1,641 59,076
00 Xxxxxxx Xxxxxx XXXX 1,300,000 2,135 8,333
00 Xxxxxxxx Xxxx Xxxxx Xxxxx CRF 5,665 20,197
19 Lullwater at Bass Apartments CRF 6,583 150,000
20 U Stor It Self Storage Portfolio CRF 4,019 144,687
20.01 0000 Xxxx 00xx Xxxxxx CRF
MONTHLY MONTHLY MONTHLY MONTHLY
TI/LC RE TAX INS. OTHER GRACE
LOAN # PROPERTY NAME ORIGINATOR RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
------ ---------------------------------- ---------- --------------- ----------- ----------- ----------- ------
1 Galileo NXL Retail Portfolio 3 MLML 249,933 43,606 333 0
1.01 San Dimas Plaza MLML
1.02 The Crossing at Fry Road MLML
1.03 Xxxxx Xxxx MLML
1.04 Fashion Corner MLML
1.05 Bristol Plaza MLML
1.06 Xxxxx Plaza MLML
1.07 XxXxxxxx Plaza MLML
1.08 Green River Plaza MLML
1.09 Stratford Commons MLML
1.10 Hunting Hills MLML
1.11 Tomball Parkway Plaza MLML
1.12 Wisteria Village MLML
1.13 Paradise Plaza MLML
1.14 Kmart Plaza MLML
1.15 Packard Plaza MLML
1.16 Northside Plaza MLML
1.17 Xxxxxxxxxx Xxxx XXXX
0 Xxxxxxx Xxxxx Xxxxxx MLML 5
3 60 State Street MLML 0
0 00 Xxxxx Xxxxxx Xxxxxxxx 0
0 Ashford Hotel Portfolio 2 MLML 141,729 73,830 0
4.01 Courtyard Xxxxxx Airport MLML
4.02 Radisson Indianapolis Downtown MLML
4.03 Embassy Suites Palm Beach MLML
4.04 Hilton St. Petersburg MLML
4.05 Hilton Nassau - Houston MLML
5 Ashford Hotel Portfolio 3 MLML 66,021 28,780 14,585 0
5.01 Crowne Plaza Xxxxxxx Hills MLML
5.02 Radisson Fort Worth MLML
5.03 SpringHill Suites Gaithersburg MLML
5.04 Courtyard Fort Lauderdale MLML
5.05 SpringHill Suites Centreville MLML
6 Lakewood Apartments CRF 55,847 49,730 0
7 Lightstone Portfolio CRF 98,121 10,015 9,522 0
7.01 00xx Xxxxxx Plaza CRF
7.02 Monroe Plaza CRF
7.03 New Smyrna Beach Shopping Center CRF
7.04 Mountainville Shopping Center CRF
7.05 Martintown Plaza CRF
7.06 Birney Mall CRF
7.07 Shillington Plaza CRF
7.08 Cloud Springs Plaza CRF
7.09 Home Depot CRF
7.10 Dunmore Plaza CRF
7.11 Kings Fairground Plaza CRF
8 CNL-Cirrus MOB Portfolio II CRF 117,390 0
8.01 Ballas Medical Xxxxx XXX
0.00 Xxxxx Xxxxx Hospital CRF
8.03 Xxxxxx Medical Plaza CRF
8.04 Baylor Health Center at Lake Ridge CRF
8.05 Midlothian Healthcare Center CRF
8.06 XxXxx Health Center CRF
9 Sprint Data Center MLML 5
10 Prince Georges Center II CRF 85,006 0
11 Inglewood Park CRF 48,333 8,809 0
11.01 Inglewood 2 CRF
11.02 Inglewood 1 CRF
11.03 Inglewood 6 CRF
11.04 Inglewood 5 CRF
11.05 Inglewood 4 CRF
11.06 Inglewood 7 CRF
11.07 Inglewood 3 CRF
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX 29,417 2,242 5
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF 39,345 7,199 0
13.01 Ashford Center CRF
13.02 Xxxxxxxxx Xxxxx XXX
00 Xxxxxxx Xxxxxx CRF 114,656 5,867 34,992 0
15 Xxxxxxxx Center CRF 23,891 3,620 0
16 South Virginia Plaza MLML 12,774 3,760 5
00 Xxxxxxx Xxxxxx MLML 100,000 18,047 2,498 5
18 Colonial Mall Xxxxx Place CRF 21,074 8,662 0
19 Lullwater at Bass Apartments CRF 27,088 7,543 0
20 U Stor It Self Storage Portfolio CRF 36,587 2,403 0
20.01 0000 Xxxx 00xx Xxxxxx CRF
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE STREET ADDRESS
------ ------------------------------------------- ---------- ------------------- -------------------------------------------
20.02 0000 Xxxx 000xx Xxxxxx CRF Self Storage 0000 Xxxx 000xx Xxxxxx
20.03 0000 Xxxx 00xx Xxxxxx CRF Self Storage 0000 Xxxx 00xx Xxxxxx
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX Self Storage 1798 and 0000 Xxxxx Xxxxxxx
21 La Crosse Industrial MLML Industrial 0000 Xxxxx Xxxxx Xxxxxx
22 Kahana Gateway Professional Center - Retail MLML Retail 0000 Xxxxxxxxxxxx Xxxxxxx
00 Villages at Paseo del Sol MLML Retail 32120, 32140, 32170, 32180, 32200,
32220 & 00000 Xxxxxxx 00 Xxxxx
24 Breckenridge Park Portfolio CRF Industrial Various
24.01 Breckenridge I-III CRF Industrial 5905, 5907, 5909, 5910, 5911 and 0000
Xxxxxxxxxxxx Xxxxxxx
24.02 Breckenridge IV-V CRF Industrial 5802, 5803, 5805, 5807 and 0000
Xxxxxxxxxxxx Xxxxxxx
25 Village Faire Shopping Center MLML Retail 000 Xxxxxxxx Xxxxxxx Xxxxx
26 Guardian Self Storage CRF Self Storage Various
26.01 Storage I (CA) CRF Self Storage 0000 Xxxxxx Xxxxxx
26.02 Self Storage HR CRF Self Storage 000 Xxx Xxxxxxxx Xxxx
26.03 Self Storage WD CRF Self Storage 0000 Xxxx Xxxxxxxxxx Xxxxx
26.04 Self Storage III (SM) CRF Self Storage 000 Xxxxx Xxxxxxxx Xxxxxx
27 Xxxxxxxx Distribution CRF Industrial Various
27.01 Xxxxxxxx Distribution 1 CRF Industrial 2401 and 2501 Expedition Court
27.02 Xxxxxxxx Distribution 2 CRF Industrial 0000 00xx Xxxxxx
28 University Collection Shopping Center MLML Retail 0000-0000 Xxxx Xxxxxx Xxxxxx
29 Lakeshore Apartments MLML Multifamily 000 Xxxxxxx Xxxxxx
30 Southdown Pavilion CRF Multifamily 0000 Xxxxxxx 000
31 Brookhollow Shopping Center MLML Retail 14526-15164 San Xxxxx Avenue
32 La Reina Plaza MLML Retail 14622 Ventura Boulevard
33 Army Corp Engineer Building MLML Office 0000 Xxxx Xxxxxx
34 Himmarshee Landing CRF Office 1200 East Las Olas
35 Plaza at Hurstbourne Green MLML Office 3220 Office Pointe Place and 0000
Xxxxxx Xxxxxxx Xxxx
36 Xxxxxxxxx Square CRF Retail 0000 Xxxxxxxxx Xxxx
00 Xxxxxx Xxxx Xxxx Xxxx Airport CRF Hospitality 0000 Xxxxx Xxxx Xxx
38 Trappe Shopping Center MLML Retail 000 Xxxx Xxxx Xxxxxx
39 FNBA - Fountainhead Building CRF Office 0000 Xxxx Xxxxxxx Xxxxx
40 Encino Valley Shopping Center MLML Retail 17919-17977 Ventura Boulevard
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX Hospitality 0000 Xxxxx Xxxxx
00 Xxxxxxxx Xxxxxxxxxx Ground Lease Portfolio CRF Other Various
42.01 Buckingham Heights Business Park CRF Other 5601-5731 Xxxxxxx Avenue
42.02 Watt Leed Distribution Facility CRF Other 000 Xxxxx Xxxxxx Xxxxxx
42.03 Xxxxxx Xxxxxx CRF Other 0000 XxXxxxxxx Xxxxxx
42.04 XxXxxxxxx Xxxxxx CRF Other 0000 XxXxxxxxx Xxxxxx
43 Cranberry Plaza MLML Industrial 0 Xxxxxxxxx Xxxx
44 GN Resound MLML Industrial 0000 Xxxx Xxxxxxxxxxx Xxxxxxx
45 Pueblo Crossing CRF Retail 0000-0000 Xxxxx Xxxxxxxxx Xxxxxx
46 Augusta Corporate Park CRF Office 1481, 1485, and 0000 Xxxx Xxxx Xxxxxxx Xxxx
47 XxXxxx Lakes Apartments MLML Multifamily 000 Xxxx Xxxx Xxxx Xxxx
00 Xxx Xxxx Office MLML Office 00 Xxxxxxxx Xxxxxxxxx
49 Hilton Garden Inn Garden Grove CRF Hospitality 00000 Xxxxxx Xxxxxxxxx
50 Widewaters Commons CRF Retail Routes 119 and 201
51 60 East Lake CRF Other 00 Xxxx Xxxx Xxxxxx
52 Da Vinci Court Apartments CRF Multifamily 1666 Da Vinci Court
53 Hampton Inn & Suites Garden Grove CRF Hospitality 00000 Xxxxxx Xxxxxxxxx
54 0000 Xxxxxxxx Xxxxxxxxx XXXX Xxxxxx 0000 Xxxxxxxx Xxxxxxxxx
55 000 Xxxx Xxxxx Xxxxxx XXX Office 000 Xxxx Xxxxx Xxxxxx
56 Desert Xxxx Shopping Center MLML Retail 0000 Xxxx Xxxx Xxxx
57 Victory Plaza MLML Retail 1525-1585 Xxxxxxxxx Xxxxxxxxx
00 Xxxxxxxxx Xxxxxxx MLML Manufactured Housing 0000 Xxxxxxxxx 0xx Xxxxxx
59 Trainers Station Shopping Center MLML Retail 00-00 Xxxxx Xxxx Xxx Xxxxxxxxx
60 Porterwood Shopping Center MLML Retail 00000 XX-00 Xxxxx
61 Xxxxxxxx Medical Arts Center CRF Office 0000 Xxxxx Xxxxxxx Xxxxx
62 Virginia Eye Development MLML Xxxxxx 000 Xxxxxxxxx Xxxxxxxxx
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX Multifamily 0000 Xxxx Xxxx Xxxx
64 Danovitz Portfolio MLML Various Various
64.01 00 Xxxx Xxxx XXXX Xxxxxx 00 Xxxx Xxxx
64.02 Parkway East Professional Center MLML Office 00000 Xxxxxxxxxx Xxxx
64.03 000 Xxxx Xxxx MLML Industrial 000 Xxxx Xxxx
65 Sherwood Village Apartments MLML Multifamily 0000 Xxxxx Xxxxxx Xxxxxx
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX Xxxxxx 000 Xxxx Xxxxxxx Xxxx
00 000 Xxxxx Xxx Xxxxxxx Street CRF Retail 000 Xxxxx Xxx Xxxxxxx Xxxxxx
68 Bond Hotel Master Leases CRF Other 000 Xxxxxx Xxxxxx
69 Battlefield Park MLML Multifamily 3020 South Sagamont
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF Industrial 3100 and 0000 0xx Xxxxxx
71 International Promenade CRF Retail 4951 West Irlo Xxxxxxx Memorial Highway
72 Centennial Pavilion CRF Retail 7830 and 0000 Xxxx Xxx Xxxx
73 000 Xxxx Xxxxxxxx Xxx CRF Multifamily 000 Xxxx Xxxxxxxx Xxx
00 X & X Xxxxx XXX Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx
75 Moon Valley Xxxxx XXX Xxxxxx 00000-00000 Xxxxx 0xx Xxxxxx,
402-428 and 000 Xxxx Xxxxxxxxxxx Xxxx
76 Garden Office Park MLML Office 1300 & 0000 Xxxxxxxx Xxxx
77 PCG Corporate Center MLML Office 0000 Xxxxxxxxx Xxxxxxx Xxxxxx
78 119 North 0xx Xxxxxx MLML Mixed Use 000 Xxxxx 0xx Xxxxxx
79 Cambray Park CRF Multifamily 00000 Xxxx 0xx Xxxxxx
CUT-OFF DATE
LOAN # PROPERTY NAME ORIGINATOR CITY COUNTY STATE ZIP CODE BALANCE ($)
------ ------------------------------------------- ---------- ---- ------ ----- -------- ------------
20.02 0000 Xxxx 000xx Xxxxxx XXX Xxxxxxx Xxxx XX 00000 5,220,000
20.03 0000 Xxxx 00xx Xxxxxx XXX Xxxxxxx Xxxx XX 00000 4,120,000
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX Xxx Xxxxxxx Xxxx XX 00000 3,900,000
00 Xx Xxxxxx Xxxxxxxxxx XXXX XxXxxxxx XxXxxxxx XX 00000 18,935,829
00 Xxxxxx Xxxxxxx Professional Center - Retail MLML Xxxxxxx Xxxx XX 00000 18,425,000
23 Villages at Paseo del Sol MLML Temecula Xxxxxxxxx XX 00000 18,260,000
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX Xxxxx Xxxxxxxxxxxx XX 00000 17,600,000
24.01 Breckenridge I-III CRF Tampa Xxxxxxxxxxxx XX 00000 11,880,000
24.02 Breckenridge IV-V CRF Tampa Xxxxxxxxxxxx XX 00000 5,720,000
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx XXXX Xxxxxxxx Xxx Xxxxx XX 00000 17,580,000
26 Guardian Self Storage CRF Various Allegheny PA Various 17,500,000
26.01 Storage I (CA) CRF Xxxxxxxxxx Xxxxxxxxx XX 00000 7,600,000
26.02 Self Storage HR CRF Xxxxxxxxxxx Xxxxxxxxx XX 00000 4,900,000
26.03 Self Storage XX XXX Xxxxxxx Xxxxxxxxx XX 00000 3,600,000
26.04 Self Storage III (SM) CRF Xxxxxxxxxx Xxxxxxxxx XX 00000 1,400,000
27 Xxxxxxxx Distribution CRF Various Various IA Various 16,961,215
27.01 Xxxxxxxx Distribution 0 XXX Xxxxx Xxxx Xxxxxxxx XX 00000 13,180,052
27.02 Xxxxxxxx Distribution 0 XXX XxXxxx Xxxxxxxx XX 00000 3,781,163
28 University Collection Shopping Center MLML Tampa Xxxxxxxxxxxx XX 00000 16,100,000
00 Xxxxxxxxx Xxxxxxxxxx XXXX Xxxxxxxxxx Xxxxxxxxxxx XX 00000 15,600,000
00 Xxxxxxxxx Xxxxxxxx XXX Xxxxx Xxxxxxxxxx XX 00000 14,900,000
31 Brookhollow Shopping Center MLML Xxx Xxxxxxx Xxxxx XX 00000 14,700,000
32 Xx Xxxxx Xxxxx XXXX Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000 14,600,000
00 Xxxx Xxxx Xxxxxxxx Xxxxxxxx XXXX Xxxxxxxxx Xxxxxx XX 00000 14,400,000
00 Xxxxxxxxxx Xxxxxxx XXX Xxxx Xxxxxxxxxx Xxxxxxx XX 00000 14,250,000
35 Plaza at Hurstbourne Green MLML Louisville Xxxxxxxxx XX 00000 13,500,000
00 Xxxxxxxxx Xxxxxx XXX Xxxxxxxx Xxxxxxxx XX 00000 13,450,000
37 Hilton Salt Lake City Airport CRF Salt Lake City Xxxx Xxxx XX 00000 13,425,000
00 Xxxxxx Xxxxxxxx Xxxxxx XXXX Xxxxxx Xxxxxxxxxx XX 00000 13,200,000
00 XXXX - Xxxxxxxxxxxx Xxxxxxxx XXX Xxxxx Xxxxxxxx XX 00000 13,175,383
40 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX Xxxxxx Xxx Xxxxxxx XX 00000 13,100,000
41 Hilton Garden Inn - Oxnard MLML Oxnard Xxxxxxx XX 00000 12,960,238
42 Southern California Ground Lease Portfolio CRF Various Los Angeles CA Various 12,469,946
42.01 Buckingham Heights Business Park CRF Xxxxxx City Xxx Xxxxxxx XX 00000 9,389,221
42.02 Watt Leed Distribution Facility CRF Brea Xxxxxx XX 00000 1,265,934
42.03 Xxxxxx Xxxxxx CRF Los Angeles Xxx Xxxxxxx XX 00000 924,472
42.04 XxXxxxxxx Xxxxxx CRF Los Angeles Xxx Xxxxxxx XX 00000 890,319
00 Xxxxxxxxx Xxxxx XXXX Xxxxxxxxxx Xxxxxx XX 00000 12,275,000
00 XX Xxxxxxx XXXX Xxxxxxxxxxx Xxxxxxxx XX 00000 12,275,000
00 Xxxxxx Xxxxxxxx XXX Xxxxxx Xxxxxx XX 00000 11,800,000
00 Xxxxxxx Xxxxxxxxx Xxxx XXX Xxxxxxxxx Xxxxx XX 00000 11,456,250
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX Xxxxxxxxxx Xxxxxx XX 00000 11,271,936
00 Xxx Xxxx Xxxxxx XXXX Xxx Xxxx Xxxxxxxx XX 00000 10,937,069
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx XXX Xxxxxx Xxxxx Xxxxxx XX 00000 10,776,126
00 Xxxxxxxxxx Xxxxxxx XXX Xxxxxxxxxxxxx Xxxxxxx XX 00000 10,600,000
51 00 Xxxx Xxxx XXX Xxxxxxx Xxxx XX 00000 10,050,000
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX Xxxxx Xxxx XX 00000 9,900,000
53 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx XXX Xxxxxx Xxxxx Xxxxxx XX 00000 9,678,558
54 0000 Xxxxxxxx Xxxxxxxxx XXXX Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 9,600,000
55 000 Xxxx Xxxxx Xxxxxx XXX Xxx Xxxxx Xxx Xxxxx XX 00000 9,500,000
00 Xxxxxx Xxxx Xxxxxxxx Xxxxxx XXXX Xxxxxxxx Xxxxxxxx XX 00000 9,400,000
00 Xxxxxxx Xxxxx XXXX Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 9,237,000
00 Xxxxxxxxx Xxxxxxx XXXX Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 8,951,236
59 Trainers Xxxxxxx Xxxxxxxx Xxxxxx XXXX Xxxxxxxxxx Xxxxx XX 00000 8,900,000
00 Xxxxxxxxxx Xxxxxxxx Xxxxxx XXXX Xxxxxx Xxxxxxxxxx XX 00000 8,526,000
00 Xxxxxxxx Xxxxxxx Xxxx Center CRF Los Angeles Xxx Xxxxxxx XX 00000 8,373,133
62 Virginia Eye Development XXXX Xxxxxxx Xxxxxxx Xxxxx XX 00000 8,300,000
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX Xxxxxxxxxxx Xxxxxx XX 00000 8,180,961
64 Danovitz Portfolio MLML Various Allegheny PA Various 7,889,761
64.01 00 Xxxx Xxxx XXXX Xxxxxxxxxx Xxxxxxxxx XX 00000 3,299,355
64.02 Parkway Xxxx Xxxxxxxxxxxx Xxxxxx XXXX Xxxxxxxxxx Xxxxxxxxx XX 00000 2,653,829
64.03 000 Xxxx Xxxx XXXX Xxxxxxxxxxx Xxxxxxxxx XX 00000 1,936,578
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX Xxxxxxxxxxx Xxxxxx XX 00000 7,873,028
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX Xxxxxxxxxx Xxxxxxxxx XX 00000 7,800,000
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF Los Angeles Xxx Xxxxxxx XX 00000 7,475,556
68 Bond Hotel Master Leases CRF Hartford Hartford CT 6103 7,000,000
00 Xxxxxxxxxxx Xxxx XXXX Xxxxxxxxxxx Xxxxxx XX 00000 6,890,532
70 Xxxxxxx Xxxxxx & Xxxx #0 Xxxxxxxxx XXX Xxxxxxxxxx Xxxxxxxxx XX 00000 6,836,831
71 International Promenade CRF Kissimmee Xxxxxxx XX 00000 6,800,000
00 Xxxxxxxxxx Xxxxxxxx XXX Xxx Xxxxx Xxxxx XX 00000 6,755,000
73 000 Xxxx Xxxxxxxx Xxx XXX Xxxxxxx Xxx Xxxxxxxxxx XX 00000 6,577,349
00 X & X Xxxxx XXX Xxx Xxxxx Xxxxx XX 00000 6,539,400
00 Xxxx Xxxxxx Xxxxx XXX Xxxxxxx Xxxxxxxx XX 00000 6,525,000
00 Xxxxxx Xxxxxx Xxxx XXXX Xxxx Xxxxxxx Xxxxxxxxxx XX 00000 6,385,699
00 XXX Xxxxxxxxx Xxxxxx XXXX Xxxxxxxx Xxxxxxxxx XX 00000 6,385,167
78 000 Xxxxx 0xx Xxxxxx XXXX Xxxxxxxxxxx Xxxxxxxx XX 00000 6,385,128
00 Xxxxxxx Xxxx XXX Xxxxxx Xxxxxxxx XX 00000 6,300,000
ORIGINAL IO MONTHLY IO ANNUAL MONTHLY P&I DEBT
LOAN # PROPERTY NAME ORIGINATOR BALANCE ($) DEBT SERVICE ($) DEBT SERVICE ($) SERVICE ($)
------ ------------------------------------------- ---------- ------------ ---------------- ---------------- ----------------
20.02 0000 Xxxx 000xx Xxxxxx CRF 5,220,000
20.03 0000 Xxxx 00xx Xxxxxx CRF 4,120,000
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX 3,900,000
00 Xx Xxxxxx Xxxxxxxxxx XXXX 19,000,000 106,335.32
22 Kahana Gateway Professional Center - Retail MLML 18,425,000 82,445.05 989,340.61 102,269.12
23 Villages at Paseo del Sol MLML 18,260,000 79,361.68 952,340.16 99,636.90
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX 17,600,000 84,612.41 1,015,348.89 102,038.97
24.01 Breckenridge I-III CRF 11,880,000
24.02 Breckenridge IV-V CRF 5,720,000
25 Village Faire Shopping Center MLML 17,580,000 81,545.56 978,546.75 99,707.03
26 Guardian Self Storage CRF 17,500,000 85,018.81 1,020,225.69 102,125.25
26.01 Storage I (CA) CRF 7,600,000
26.02 Self Storage HR CRF 4,900,000
26.03 Self Storage WD CRF 3,600,000
26.04 Self Storage III (SM) CRF 1,400,000
27 Xxxxxxxx Distribution CRF 17,000,000 98,345.12
27.01 Xxxxxxxx Distribution 1 CRF 13,210,191
27.02 Xxxxxxxx Distribution 2 CRF 3,789,809
28 University Collection Shopping Center MLML 16,100,000 81,087.54 973,050.46
00 Xxxxxxxxx Xxxxxxxxxx XXXX 15,600,000 73,811.11 885,733.33 89,556.32
00 Xxxxxxxxx Xxxxxxxx XXX 14,900,000 69,240.16 830,881.94 84,600.56
31 Brookhollow Shopping Center MLML 14,700,000 71,043.19 852,518.33 85,505.26
00 Xx Xxxxx Xxxxx XXXX 14,600,000 68,869.92 826,439.08 83,659.09
33 Army Corp Engineer Building MLML 14,400,000 68,376.67 820,520.00
34 Himmarshee Landing CRF 14,250,000 69,470.40 833,644.79 83,340.27
00 Xxxxx xx Xxxxxxxxxxx Xxxxx XXXX 13,500,000 64,160.16 769,921.88 77,713.61
00 Xxxxxxxxx Xxxxxx CRF 13,450,000 64,888.47 778,661.60 78,149.11
00 Xxxxxx Xxxx Xxxx Xxxx Xxxxxxx XXX 13,425,000 67,717.01 812,604.06 80,230.91
38 Trappe Shopping Center MLML 13,200,000 62,065.21 744,782.50 75,487.35
00 XXXX - Xxxxxxxxxxxx Xxxxxxxx XXX 13,200,000 80,980.74
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX 13,100,000 62,004.54 744,054.53 75,220.87
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX 13,000,000 83,759.18
42 Southern California Ground Lease Portfolio CRF 12,500,000 69,801.71
42.01 Buckingham Heights Business Park CRF 9,411,850
42.02 Watt Leed Distribution Facility CRF 1,268,985
42.03 Xxxxxx Xxxxxx CRF 926,700
42.04 XxXxxxxxx Xxxxxx CRF 892,465
00 Xxxxxxxxx Xxxxx XXXX 12,275,000 56,772.16 681,265.91 69,495.99
44 GN Resound MLML 12,275,000 61,418.47 737,021.69 72,980.40
45 Pueblo Crossing CRF 11,800,000 56,329.98 675,959.72 68,113.82
00 Xxxxxxx Xxxxxxxxx Xxxx CRF 11,456,250 54,592.21 655,106.56 66,057.17
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX 11,300,000 61,714.89
48 New City Office MLML 11,000,000 60,212.07
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF 10,800,000 63,803.27
00 Xxxxxxxxxx Xxxxxxx CRF 10,600,000 48,720.74 584,648.89 59,787.21
51 00 Xxxx Xxxx XXX 10,050,000 47,636.30 571,635.63 57,758.33
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX 9,900,000 44,165.00 529,980.00 54,852.27
00 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx CRF 9,700,000 57,304.79
54 0000 Xxxxxxxx Xxxxxxxxx XXXX 9,600,000 44,700.33 536,404.00 54,574.02
55 000 Xxxx Xxxxx Xxxxxx CRF 9,500,000 44,708.28 536,499.31 54,357.92
56 Desert Xxxx Shopping Center MLML 9,400,000 43,308.43 519,701.19 53,095.30
00 Xxxxxxx Xxxxx XXXX 9,237,000 43,353.50 520,241.95 52,765.86
00 Xxxxxxxxx Xxxxxxx MLML 9,000,000 50,819.03
59 Trainers Station Shopping Center MLML 8,900,000 41,478.53 497,742.39 50,622.60
60 Porterwood Shopping Center MLML 8,526,000 40,016.45 480,197.35 48,704.31
00 Xxxxxxxx Xxxxxxx Xxxx Xxxxxx CRF 8,400,000 48,540.92
62 Virginia Eye Development MLML 8,300,000 40,140.88 481,690.50 48,299.54
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX 8,200,000 46,883.34
64 Danovitz Portfolio MLML 7,900,000 48,641.66
64.01 00 Xxxx Xxxx XXXX 3,303,636
64.02 Parkway East Professional Center MLML 2,657,273
64.03 000 Xxxx Xxxx XXXX 1,939,091
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 7,900,000 43,927.96
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX 7,800,000 38,355.42 460,265.00 45,866.13
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF 7,500,000 42,866.94
68 Bond Hotel Master Leases CRF 7,000,000 44,100.92
00 Xxxxxxxxxxx Xxxx XXXX 6,900,000 40,003.91
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF 6,860,000 38,392.65
71 International Promenade CRF 6,800,000 34,299.86 411,598.33 40,638.37
72 Centennial Pavilion CRF 6,755,000 31,675.79 380,109.48 38,566.32
73 000 Xxxx Xxxxxxxx Xxx CRF 6,600,000 36,584.56
74 R & R Plaza CRF 6,539,400 29,283.49 351,401.93 36,313.59
00 Xxxx Xxxxxx Xxxxx CRF 6,525,000 30,431.88 365,182.50 37,130.15
76 Garden Office Park MLML 6,400,000 37,539.97
77 PCG Corporate Center MLML 6,400,000 36,636.19
78 000 Xxxxx 0xx Xxxxxx MLML 6,400,000 36,571.73
00 Xxxxxxx Xxxx XXX 6,300,000 28,743.75 344,925.00 35,376.44
ANNUAL P&I DEBT INTEREST PRIMARY MASTER
LOAN # PROPERTY NAME ORIGINATOR SERVICE ($) RATE % SERVICING FEE SERVICING FEE
------ ------------------------------------------- ---------- ----------- ------ ------------- -------------
20.02 0000 Xxxx 000xx Xxxxxx CRF
20.03 0000 Xxxx 00xx Xxxxxx CRF
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX
21 La Crosse Industrial MLML 1,276,023.84 5.3700 0.0100
00 Xxxxxx Xxxxxxx Xxxxxxxxxxxx Xxxxxx - Xxxxxx XXXX 1,227,229.44 5.2960 0.0100 0.0100
00 Xxxxxxxx xx Xxxxx xxx Xxx MLML 1,195,642.80 5.1440 0.0100 0.0100
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX 1,224,467.64 5.6900 0.0100 0.0100
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
25 Village Faire Shopping Center MLML 1,196,484.36 5.4900 0.0100 0.0100
26 Guardian Self Storage CRF 1,225,503.00 5.7500 0.0100 0.0100
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Xxxxxxxx Distribution CRF 1,180,141.44 5.6700 0.0100 0.0100
27.01 Xxxxxxxx Distribution 1 CRF
27.02 Xxxxxxxx Distribution 2 CRF
28 University Collection Shopping Center MLML 5.9610 0.0100
00 Xxxxxxxxx Xxxxxxxxxx XXXX 1,074,675.84 5.6000 0.0100 0.0100
00 Xxxxxxxxx Xxxxxxxx XXX 1,015,206.72 5.5000 0.0100 0.0100
31 Brookhollow Shopping Center MLML 1,026,063.12 5.7200 0.0100 0.0100
00 Xx Xxxxx Xxxxx MLML 1,003,909.08 5.5830 0.0100 0.0100
33 Army Corp Engineer Building MLML 5.6200 0.0100 0.0100
34 Himmarshee Landing CRF 1,000,083.24 5.7700 0.0100 0.0100
00 Xxxxx xx Xxxxxxxxxxx Xxxxx XXXX 932,563.32 5.6250 0.0100 0.0100
00 Xxxxxxxxx Xxxxxx XXX 937,789.32 5.7100 0.0100 0.0100
00 Xxxxxx Xxxx Xxxx Xxxx Xxxxxxx XXX 962,770.92 5.9700 0.0100 0.0100
38 Trappe Shopping Center MLML 905,848.20 5.5650 0.0100 0.0100
39 FNBA - Fountainhead Building CRF 971,768.88 5.4900 0.0100 0.0100
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX 902,650.44 5.6020 0.0100 0.0100
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX 1,005,110.16 6.0000 0.0100 0.0100
42 Southern California Ground Lease Portfolio CRF 837,620.52 5.3500 0.0100 0.0100
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Xxxxxx Xxxxxx CRF
42.04 XxXxxxxxx Xxxxxx XXX
00 Xxxxxxxxx Xxxxx MLML 833,951.88 5.4740 0.0100 0.0100
44 GN Resound MLML 875,764.80 5.9220 0.0100 0.0100
45 Pueblo Crossing CRF 817,365.84 5.6500 0.0100 0.0100
00 Xxxxxxx Xxxxxxxxx Xxxx CRF 792,686.04 5.6400 0.0100 0.0100
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX 740,578.68 5.1520 0.0100 0.0100
48 New City Office MLML 722,544.84 5.1720 0.0100 0.0100
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF 765,639.24 5.8630 0.0100 0.0100
50 Widewaters Commons CRF 717,446.52 5.4400 0.0100 0.0100
51 60 East Lake CRF 693,099.96 5.6100 0.0100 0.0100
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX 658,227.24 5.2800 0.0100 0.0100
00 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx CRF 687,657.48 5.8630 0.0100 0.0100
54 0000 Xxxxxxxx Xxxxxxxxx XXXX 654,888.24 5.5110 0.0100 0.0100
55 000 Xxxx Xxxxx Xxxxxx CRF 652,295.04 5.5700 0.0100 0.0100
56 Desert Xxxx Shopping Center MLML 637,143.60 5.4530 0.0100 0.0100
00 Xxxxxxx Xxxxx XXXX 633,190.32 5.5550 0.0100 0.0100
58 Tidewater Estates MLML 609,828.36 5.4500 0.0100 0.0100
59 Trainers Station Shopping Center MLML 607,471.20 5.5160 0.0100 0.0100
60 Porterwood Shopping Center MLML 584,451.72 5.5550 0.0100 0.0100
00 Xxxxxxxx Xxxxxxx Xxxx Center CRF 582,491.04 5.6600 0.0100 0.0100
62 Virginia Eye Development MLML 579,594.48 5.7240 0.0100 0.0100
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX 562,600.08 5.5630 0.0100 0.0100
64 Danovitz Portfolio MLML 583,699.92 6.2500 0.0100 0.0100
64.01 00 Xxxx Xxxx XXXX
64.02 Parkway East Professional Center MLML
64.03 000 Xxxx Xxxx XXXX
65 Sherwood Village Apartments MLML 527,135.52 5.3120 0.0100 0.0100
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx CRF 550,393.56 5.8200 0.0100 0.0100
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF 514,403.28 5.5600 0.0100 0.0100
68 Bond Hotel Master Leases CRF 529,211.04 5.7650 0.0100
00 Xxxxxxxxxxx Xxxx XXXX 480,046.92 5.6900 0.0100 0.0100
00 Xxxxxxx Xxxxxx & Xxxx #0 Xxxxxxxxx XXX 460,711.80 5.3700 0.0100 0.0100
71 International Promenade CRF 487,660.44 5.9700 0.0100 0.0100
00 Xxxxxxxxxx Xxxxxxxx XXX 462,795.84 5.5500 0.0100 0.0100
73 000 Xxxx Xxxxxxxx Xxx CRF 439,014.72 5.2840 0.0100 0.0100
74 R & R Plaza CRF 435,763.08 5.3000 0.0100 0.0100
00 Xxxx Xxxxxx Xxxxx CRF 445,561.80 5.5200 0.0100 0.0100
76 Garden Office Park MLML 450,479.64 5.7970 0.0100 0.0100
77 PCG Corporate Center MLML 439,634.28 5.5740 0.0100
78 000 Xxxxx 0xx Xxxxxx MLML 438,860.76 5.5580 0.0100 0.0100
00 Xxxxxxx Xxxx XXX 424,517.28 5.4000 0.0100 0.0100
TRUSTEE AND SUB SERVICING ADMIN. MORTGAGE
LOAN # PROPERTY NAME ORIGINATOR PAYING AGENT FEE FEE RATE FEE % RATE % ACCRUAL TYPE
------ ------------------------------------------- ---------- ---------------- ------------- ------ -------- ------------
20.02 0000 Xxxx 000xx Xxxxxx CRF
20.03 0000 Xxxx 00xx Xxxxxx CRF
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX
21 La Crosse Industrial MLML 0.0010 0.0500 0.061 5.3090 Xxxxxx/000
00 Xxxxxx Xxxxxxx Professional Center - Retail MLML 0.0010 0.021 5.2750 Actual/360
23 Villages at Paseo del Sol MLML 0.0010 0.021 5.1230 Actual/360
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX 0.0010 0.021 5.6690 Actual/360
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.4690 Actual/360
26 Guardian Self Storage CRF 0.0010 0.021 5.7290 Actual/360
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Xxxxxxxx Distribution CRF 0.0010 0.021 5.6490 Actual/360
27.01 Xxxxxxxx Distribution 1 CRF
27.02 Xxxxxxxx Distribution 2 CRF
28 University Collection Shopping Center MLML 0.0010 0.0600 0.071 5.8900 Actual/360
00 Xxxxxxxxx Xxxxxxxxxx XXXX 0.0000 0.021 5.5790 Actual/360
00 Xxxxxxxxx Xxxxxxxx XXX 0.0010 0.021 5.4790 Actual/360
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.6990 Actual/360
00 Xx Xxxxx Xxxxx XXXX 0.0000 0.021 5.5620 Actual/360
33 Army Corp Engineer Building MLML 0.0010 0.021 5.5990 Actual/360
34 Himmarshee Landing CRF 0.0010 0.021 5.7490 Actual/360
00 Xxxxx xx Xxxxxxxxxxx Xxxxx XXXX 0.0000 0.021 5.6040 Actual/360
00 Xxxxxxxxx Xxxxxx CRF 0.0010 0.021 5.6890 Actual/360
37 Hilton Salt Lake City Airport CRF 0.0010 0.021 5.9490 Actual/360
00 Xxxxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.5440 Actual/360
39 FNBA - Fountainhead Building CRF 0.0010 0.021 5.4690 Actual/360
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.5810 Actual/360
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX 0.0010 0.021 5.9790 Actual/360
42 Southern California Ground Lease Portfolio CRF 0.0010 0.021 5.3290 Actual/360
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Xxxxxx Xxxxxx CRF
42.04 XxXxxxxxx Xxxxxx CRF
00 Xxxxxxxxx Xxxxx XXXX 0.0000 0.021 5.4530 Actual/360
44 GN Resound MLML 0.0010 0.021 5.9010 Actual/360
45 Pueblo Crossing CRF 0.0010 0.021 5.6290 Actual/360
46 Augusta Corporate Park CRF 0.0010 0.021 5.6190 Actual/360
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX 0.0000 0.021 5.1310 Actual/360
00 Xxx Xxxx Xxxxxx XXXX 0.0000 0.021 5.1510 Actual/360
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF 0.0010 0.021 5.8420 Actual/360
50 Widewaters Commons CRF 0.0010 0.021 5.4190 Actual/360
51 00 Xxxx Xxxx XXX 0.0000 0.021 5.5890 Actual/360
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX 0.0010 0.021 5.2590 Actual/360
00 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx CRF 0.0010 0.021 5.8420 Actual/360
54 0000 Xxxxxxxx Xxxxxxxxx XXXX 0.0000 0.021 5.4900 Actual/360
55 000 Xxxx Xxxxx Xxxxxx CRF 0.0010 0.021 5.5490 Actual/360
00 Xxxxxx Xxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.4320 Actual/360
00 Xxxxxxx Xxxxx XXXX 0.0000 0.021 5.5340 Actual/360
00 Xxxxxxxxx Xxxxxxx XXXX 0.0000 0.021 5.4290 Actual/360
00 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.4950 Actual/360
00 Xxxxxxxxxx Xxxxxxxx Xxxxxx XXXX 0.0000 0.021 5.5340 Actual/360
00 Xxxxxxxx Xxxxxxx Xxxx Center CRF 0.0010 0.021 5.6390 Actual/360
62 Virginia Eye Development MLML 0.0010 0.021 5.7030 Actual/360
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX 0.0000 0.021 5.5420 Actual/360
64 Danovitz Portfolio MLML 0.0010 0.021 6.2290 Actual/360
64.01 00 Xxxx Xxxx XXXX
64.02 Parkway East Professional Center MLML
64.03 000 Xxxx Xxxx XXXX
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 0.0000 0.021 5.2910 Actual/360
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX 0.0010 0.021 5.7990 Actual/360
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF 0.0010 0.021 5.5390 Actual/360
68 Bond Hotel Master Leases CRF 0.0010 0.0700 0.081 5.6840 Actual/360
00 Xxxxxxxxxxx Xxxx XXXX 0.0000 0.021 5.6690 Actual/360
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF 0.0010 0.021 5.3490 Actual/360
71 International Promenade CRF 0.0010 0.021 5.9490 Actual/360
72 Centennial Pavilion CRF 0.0010 0.021 5.5290 Actual/360
73 000 Xxxx Xxxxxxxx Xxx CRF 0.0010 0.021 5.2630 Actual/360
00 X & X Xxxxx XXX 0.0000 0.021 5.2790 Actual/360
00 Xxxx Xxxxxx Xxxxx CRF 0.0010 0.021 5.4990 Actual/360
00 Xxxxxx Xxxxxx Xxxx XXXX 0.0000 0.021 5.7760 Actual/360
00 XXX Xxxxxxxxx Xxxxxx XXXX 0.0000 0.1000 0.111 5.4630 Actual/360
78 000 Xxxxx 0xx Xxxxxx XXXX 0.0000 0.021 5.5370 Actual/360
00 Xxxxxxx Xxxx XXX 0.0010 0.021 5.3790 Actual/360
MATURITY/ AMORT
LOAN # PROPERTY NAME ORIGINATOR TERM REM. TERM ARD DATE TERM REM. AMORT TITLE TYPE
------ ------------------------------------------- ---------- ---- --------- -------- ----- ---------- ----------
20.02 0000 Xxxx 000xx Xxxxxx CRF Fee
20.03 0000 Xxxx 00xx Xxxxxx CRF Fee
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX Fee
00 Xx Xxxxxx Xxxxxxxxxx XXXX 120 117 12/1/2015 360 357 Fee
22 Kahana Gateway Professional Center - Retail MLML 120 118 1/1/2016 360 360 Fee
23 Villages at Paseo del Sol MLML 120 117 12/1/2015 360 360 Fee
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX 119 117 12/8/2015 360 360 Fee
24.01 Breckenridge I-III CRF Fee
24.02 Breckenridge IV-V CRF Fee
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx XXXX 000 000 1/1/2016 360 360 Fee/Leasehold
26 Guardian Self Storage CRF 120 118 1/8/2016 360 360 Fee
26.01 Storage I (CA) CRF Fee
26.02 Self Storage HR CRF Fee
26.03 Self Storage WD CRF Fee
26.04 Self Storage III (SM) CRF Fee
27 Xxxxxxxx Distribution CRF 120 118 1/8/2016 360 358 Fee
27.01 Xxxxxxxx Distribution 1 CRF Fee
27.02 Xxxxxxxx Distribution 2 CRF Fee
28 University Collection Shopping Center MLML 84 84 3/1/2013 0 0 Fee
29 Lakeshore Apartments MLML 120 119 2/1/2016 360 360 Fee
00 Xxxxxxxxx Xxxxxxxx XXX 120 119 2/8/2016 360 360 Fee
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx XXXX 000 000 1/1/2016 360 360 Fee
00 Xx Xxxxx Xxxxx XXXX 000 118 1/1/2016 360 360 Fee
33 Army Corp Engineer Building MLML 128 125 8/1/2016 0 0 Fee
34 Himmarshee Landing CRF 120 117 12/8/2015 360 360 Fee
00 Xxxxx xx Xxxxxxxxxxx Xxxxx XXXX 000 119 2/1/2016 360 360 Fee
00 Xxxxxxxxx Xxxxxx CRF 120 118 1/8/2016 360 360 Fee
00 Xxxxxx Xxxx Xxxx Xxxx Xxxxxxx XXX 60 57 12/8/2010 360 360 Fee
00 Xxxxxx Xxxxxxxx Xxxxxx XXXX 000 119 2/1/2016 360 360 Fee
00 XXXX - Xxxxxxxxxxxx Xxxxxxxx XXX 120 119 2/8/2016 300 299 Fee
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX 000 000 4/1/2016 360 360 Fee/Leasehold
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX 120 118 1/1/2016 300 000 Xxx
00 Xxxxxxxx Xxxxxxxxxx Ground Lease Portfolio CRF 120 118 1/8/2016 360 358 Fee
42.01 Buckingham Heights Business Park CRF Fee
42.02 Watt Leed Distribution Facility CRF Fee
42.03 Xxxxxx Xxxxxx CRF Fee
42.04 XxXxxxxxx Xxxxxx CRF Fee
00 Xxxxxxxxx Xxxxx XXXX 000 119 2/1/2016 360 360 Fee
44 GN Resound MLML 71 69 12/1/2011 360 360 Fee
45 Pueblo Crossing CRF 120 119 2/8/2016 360 360 Fee
46 Augusta Corporate Park CRF 120 119 2/8/2016 360 360 Fee
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX 000 118 1/1/2016 360 358 Fee
00 Xxx Xxxx Xxxxxx XXXX 000 000 10/1/2015 360 355 Fee
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF 120 118 1/8/2016 360 358 Fee
00 Xxxxxxxxxx Xxxxxxx XXX 120 120 3/8/2016 360 360 Fee
51 60 East Lake CRF 120 117 12/8/2015 360 360 Fee
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX 120 119 2/8/2016 360 360 Fee
00 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx XXX 120 118 1/8/2016 360 358 Fee
54 6221 Wilshire Boulevard MLML 120 118 1/1/2016 360 360 Fee
55 000 Xxxx Xxxxx Xxxxxx XXX 120 118 1/8/2016 360 360 Fee
00 Xxxxxx Xxxx Xxxxxxxx Xxxxxx XXXX 000 000 3/1/2016 360 360 Fee
00 Xxxxxxx Xxxxx XXXX 000 120 3/1/2016 360 360 Fee
00 Xxxxxxxxx Xxxxxxx XXXX 000 115 10/1/2015 360 355 Fee
00 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx XXXX 000 118 1/1/2016 360 360 Fee/Leasehold
00 Xxxxxxxxxx Xxxxxxxx Xxxxxx XXXX 000 118 1/1/2016 360 360 Fee
00 Xxxxxxxx Xxxxxxx Xxxx Center CRF 120 117 12/8/2015 360 357 Fee
62 Virginia Eye Development MLML 120 118 1/1/2016 360 360 Fee
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX 120 118 1/1/2016 360 358 Fee
64 Danovitz Portfolio MLML 120 119 2/1/2016 360 359 Fee
64.01 00 Xxxx Xxxx XXXX Fee
64.02 Parkway East Professional Center MLML Fee
64.03 000 Xxxx Xxxx XXXX Fee
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 000 117 12/1/2015 360 357 Fee
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX 120 120 3/8/2016 360 360 Fee
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF 120 117 12/8/2015 360 357 Fee
68 Bond Hotel Master Leases CRF 120 120 3/8/2016 300 300 Fee
00 Xxxxxxxxxxx Xxxx XXXX 120 119 2/1/2016 360 359 Fee
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF 120 117 12/8/2015 360 357 Fee
71 International Promenade CRF 120 117 12/8/2015 360 360 Fee
72 Centennial Pavilion CRF 120 118 1/8/2016 360 360 Fee
73 000 Xxxx Xxxxxxxx Xxx CRF 120 117 12/8/2015 360 357 Fee
00 X & X Xxxxx XXX 000 117 12/8/2015 360 360 Fee
00 Xxxx Xxxxxx Xxxxx CRF 120 120 3/8/2016 360 360 Fee
00 Xxxxxx Xxxxxx Xxxx XXXX 000 118 1/1/2016 360 358 Fee
00 XXX Xxxxxxxxx Xxxxxx XXXX 000 118 1/1/2016 360 358 Fee
78 000 Xxxxx 0xx Xxxxxx XXXX 000 118 1/1/2016 360 358 Fee
00 Xxxxxxx Xxxx XXX 120 120 3/8/2016 360 360 Fee
ARD ENVIRONMENTAL
LOAN # PROPERTY NAME ORIGINATOR ARD LOAN STEP UP INSURANCE
------ ------------------------------------------- ---------- -------- ------------------------------------- -------------
20.02 0000 Xxxx 000xx Xxxxxx CRF No
20.03 0000 Xxxx 00xx Xxxxxx CRF No
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX No
21 La Crosse Industrial MLML No No
22 Kahana Gateway Professional Center - Retail MLML No No
23 Villages at Paseo del Sol MLML No No
24 Breckenridge Park Portfolio CRF No No
24.01 Breckenridge I-III CRF No
24.02 Breckenridge IV-V CRF No
25 Village Faire Shopping Center MLML No No
26 Guardian Self Storage CRF No No
26.01 Storage I (CA) CRF No
26.02 Self Storage HR CRF No
26.03 Self Storage WD CRF No
26.04 Self Storage III (SM) CRF No
27 Xxxxxxxx Distribution CRF No No
27.01 Xxxxxxxx Distribution 1 CRF No
27.02 Xxxxxxxx Distribution 2 CRF No
28 University Collection Shopping Center MLML No No
29 Lakeshore Apartments MLML No No
30 Southdown Pavilion CRF No No
31 Brookhollow Shopping Center MLML No No
32 La Reina Plaza MLML No No
33 Army Corp Engineer Building MLML No No
34 Himmarshee Landing CRF No No
35 Plaza at Hurstbourne Green MLML No No
00 Xxxxxxxxx Xxxxxx CRF No No
37 Hilton Salt Lake City Airport CRF No No
38 Trappe Shopping Center MLML No No
39 FNBA - Fountainhead Building CRF No No
40 Encino Valley Shopping Center MLML No No
41 Hilton Garden Inn - Oxnard MLML No No
42 Southern California Ground Lease Portfolio CRF No No
42.01 Buckingham Heights Business Park CRF No
42.02 Watt Leed Distribution Facility CRF No
42.03 Xxxxxx Xxxxxx CRF No
42.04 XxXxxxxxx Xxxxxx CRF No
43 Cranberry Plaza MLML No No
44 GN Resound MLML No No
45 Pueblo Crossing CRF Yes Greater of: (i) Initial Interest Rate No
plus 2% or (ii) 10yr Treasury Rate
plus 3.18%
46 Augusta Corporate Park CRF No No
47 XxXxxx Lakes Apartments MLML No No
48 New City Office MLML No No
49 Hilton Garden Inn Garden Grove CRF No No
50 Widewaters Commons CRF No No
51 60 East Lake CRF No No
52 Da Vinci Court Apartments CRF No No
53 Hampton Inn & Suites Garden Grove CRF No No
54 6221 Wilshire Boulevard MLML No No
55 555 West Beech Street CRF No No
56 Desert Xxxx Shopping Center MLML No No
57 Victory Xxxxx XXXX Xx Xx
00 Xxxxxxxxx Xxxxxxx MLML No No
59 Trainers Station Shopping Center MLML No No
60 Porterwood Shopping Center MLML No No
61 Xxxxxxxx Medical Arts Center CRF No No
62 Virginia Eye Development MLML No No
63 Quail Creek Apartments MLML No No
64 Danovitz Portfolio MLML No No
64.01 00 Xxxx Xxxx XXXX No
64.02 Parkway East Professional Center MLML No
64.03 000 Xxxx Xxxx XXXX No
65 Sherwood Village Apartments MLML No No
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX No No
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF No No
68 Bond Hotel Master Leases CRF No No
69 Battlefield Park MLML No No
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF No No
71 International Promenade CRF No No
72 Centennial Pavilion CRF No No
73 000 Xxxx Xxxxxxxx Xxx CRF No No
74 R & R Plaza CRF No No
75 Moon Valley Plaza CRF No No
76 Garden Office Park MLML No No
77 PCG Corporate Center MLML Xx Xx
00 000 Xxxxx 0xx Xxxxxx XXXX Xx No
79 Cambray Park CRF No No
PARTIAL
CROSS CROSS DEFEASANCE LETTER OF LOCKBOX IN
LOAN # PROPERTY NAME ORIGINATOR DEFAULTED COLLATERALIZED ALLOWED CREDIT PLACE
------ ------------------------------------------- ---------- --------- -------------- ---------- --------- ----------
20.02 0000 Xxxx 000xx Xxxxxx CRF
20.03 0000 Xxxx 00xx Xxxxxx CRF
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX
21 La Crosse Industrial MLML No No No Yes Yes
22 Kahana Gateway Professional Center - Retail MLML No No No Yes No
23 Villages at Paseo del Sol MLML No No No No No
24 Breckenridge Park Portfolio CRF No No Yes No Yes
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
25 Village Faire Shopping Center MLML No No No No No
26 Guardian Self Storage CRF No No Yes No Yes
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Xxxxxxxx Distribution CRF No No Yes No Yes
27.01 Xxxxxxxx Distribution 1 CRF
27.02 Xxxxxxxx Distribution 2 CRF
28 University Collection Shopping Center MLML No No No No No
29 Lakeshore Apartments MLML No No No No No
30 Southdown Pavilion CRF No No Yes No No
31 Brookhollow Shopping Center MLML No No No Yes No
32 La Reina Plaza MLML No No No No No
33 Army Corp Engineer Building MLML No No No No Yes
34 Himmarshee Landing CRF No No No No Yes
35 Plaza at Hurstbourne Green MLML Xx Xx Xx Xx Xx
00 Xxxxxxxxx Xxxxxx CRF No No No No No
37 Hilton Salt Lake City Airport CRF No No No No Yes
38 Trappe Shopping Center MLML No No No No No
39 FNBA - Fountainhead Building CRF No No No No No
40 Encino Valley Shopping Center MLML No No No No No
41 Hilton Garden Inn - Oxnard MLML No No No No Yes
42 Southern California Ground Lease Portfolio CRF No No Yes No No
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Xxxxxx Xxxxxx CRF
42.04 XxXxxxxxx Xxxxxx CRF
43 Cranberry Plaza MLML No No No No No
44 GN Resound MLML No No No No Yes
45 Pueblo Crossing CRF No No No No Yes
46 Augusta Corporate Park CRF No No No No No
47 XxXxxx Lakes Apartments MLML No No No No No
48 New City Office MLML No No No No No
49 Hilton Garden Inn Garden Grove CRF No No No No Yes
50 Widewaters Commons CRF No No No No No
51 60 East Lake CRF No No No No No
52 Da Vinci Court Apartments CRF No No No No No
53 Hampton Inn & Suites Garden Grove CRF No No No No Yes
54 6221 Wilshire Boulevard MLML Xx Xx Xx Xx Xx
00 000 Xxxx Xxxxx Street CRF No No No No No
56 Desert Xxxx Shopping Center MLML No No No No No
57 Victory Plaza MLML No No No No No
58 Tidewater Estates MLML No No No No Yes
59 Trainers Station Shopping Center MLML No No No No No
60 Porterwood Shopping Center MLML No No No No No
61 Xxxxxxxx Medical Arts Center CRF No No No No No
62 Virginia Eye Development MLML No No No No Yes
63 Quail Creek Apartments MLML No No No No No
64 Danovitz Portfolio MLML No No No No Yes
64.01 00 Xxxx Xxxx XXXX
64.02 Parkway East Professional Center MLML
64.03 000 Xxxx Xxxx XXXX
65 Sherwood Village Apartments MLML No No No No No
66 State Street Business Park CRF Xx Xx Xx Xx Xx
00 000 Xxxxx Xxx Xxxxxxx Street CRF No No No No No
68 Bond Hotel Master Leases CRF No No No No No
69 Battlefield Park MLML No No No No No
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF No No No No Yes
71 International Promenade CRF No No No No Yes
72 Centennial Pavilion CRF No No No No No
73 755 East Virginia Way CRF No No No No No
74 R & R Plaza CRF No No No No No
75 Moon Valley Plaza CRF No No No No No
76 Garden Office Park MLML No No No No No
77 PCG Corporate Center MLML No No No No No
78 119 North 4th Street MLML Xx Xx Xx Xx Xx
00 Xxxxxxx Xxxx CRF No No No No No
UPFRONT UPFRONT UPFRONT UPFRONT
HOLDBACK ENGINEERING CAPEX ENVIR. TI/LC
LOAN # PROPERTY NAME ORIGINATOR AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ------------------------------------------- ---------- ------ ----------- ----------- ----------- -----------
20.02 0000 Xxxx 000xx Xxxxxx CRF
20.03 0000 Xxxx 00xx Xxxxxx CRF
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX
21 La Crosse Industrial MLML
22 Kahana Gateway Professional Center - Retail MLML 19,375 250,000
23 Villages at Paseo del Sol XXXX
00 Xxxxxxxxxxxx Xxxx Portfolio CRF 200,000
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
25 Village Faire Shopping Center MLML 180,000
26 Guardian Self Storage CRF
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Xxxxxxxx Distribution CRF
27.01 Xxxxxxxx Distribution 1 CRF
27.02 Xxxxxxxx Distribution 2 CRF
28 University Collection Shopping Center MLML 800,000
29 Lakeshore Apartments MLML 400,000
00 Xxxxxxxxx Xxxxxxxx XXX
31 Brookhollow Shopping Center MLML 243,309
32 La Reina Plaza MLML 500,000 85,851
33 Army Corp Engineer Building MLML 664,327
34 Himmarshee Landing CRF
35 Plaza at Hurstbourne Green MLML 33,214 1,024,000
00 Xxxxxxxxx Xxxxxx XXX
00 Xxxxxx Xxxx Xxxx Xxxx Airport CRF 6,250,000
38 Trappe Shopping Center MLML 58,845 500,000
00 XXXX - Xxxxxxxxxxxx Xxxxxxxx XXX 49,400
40 Encino Valley Shopping Center MLML 15,461 175,000
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX
42 Southern California Ground Lease Portfolio CRF
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Xxxxxx Xxxxxx CRF
42.04 XxXxxxxxx Xxxxxx CRF
43 Cranberry Plaza MLML 133,635
44 GN Resound MLML 10,181
45 Pueblo Crossing CRF 75,000
00 Xxxxxxx Xxxxxxxxx Xxxx CRF 300,000
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX
00 Xxx Xxxx Office MLML 50,000
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF
50 Widewaters Commons CRF
51 60 East Lake CRF
52 Da Vinci Court Apartments CRF
53 Hampton Inn & Suites Garden Grove CRF
54 0000 Xxxxxxxx Xxxxxxxxx XXXX 200,000
55 000 Xxxx Xxxxx Xxxxxx CRF
56 Desert Xxxx Shopping Center MLML 100,000
00 Xxxxxxx Xxxxx XXXX 500,000 60,065 150,000
58 Tidewater Estates MLML 18,750
59 Trainers Station Shopping Center MLML 35,250 32,063
60 Porterwood Shopping Center MLML
61 Xxxxxxxx Medical Arts Center CRF
62 Virginia Eye Development MLML 131,252
63 Quail Creek Apartments MLML
64 Danovitz Portfolio MLML
64.01 00 Xxxx Xxxx XXXX
64.02 Parkway East Professional Center MLML
64.03 000 Xxxx Xxxx XXXX
00 Xxxxxxxx Xxxxxxx Apartments MLML 84,000
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF
68 Bond Hotel Master Leases CRF
69 Battlefield Park MLML
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF 1,250
71 International Promenade CRF
72 Centennial Pavilion CRF 125,000
73 000 Xxxx Xxxxxxxx Xxx CRF 18,750
74 R & R Plaza CRF 150,000
00 Xxxx Xxxxxx Xxxxx CRF 16,000 4,328
76 Garden Office Park MLML 200,000
77 PCG Corporate Center MLML
78 000 Xxxxx 0xx Xxxxxx XXXX
00 Xxxxxxx Xxxx CRF 1,000,000
UPFRONT UPFRONT UPFRONT MONTHLY
RE TAX INS. OTHER CAPEX
LOAN # PROPERTY NAME ORIGINATOR RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ------------------------------------------- ---------- ----------- ----------- ----------- --------------------
20.02 0000 Xxxx 000xx Xxxxxx CRF
20.03 0000 Xxxx 00xx Xxxxxx CRF
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX
21 La Crosse Industrial MLML 357,940 88,874 7,765
22 Kahana Gateway Professional Center - Retail MLML 54,402 15,781 735
23 Villages at Paseo del Sol MLML 28,310 5,250 962
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX 24,734 44,278 4,557
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
25 Village Faire Shopping Center MLML 67,671 2,528 67,730 1,137
26 Guardian Self Storage CRF 115,536 31,461 3,461
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Xxxxxxxx Distribution CRF
27.01 Xxxxxxxx Distribution 1 CRF
27.02 Xxxxxxxx Distribution 2 CRF
28 University Collection Shopping Center MLML 37,050 277,427 1,782
00 Xxxxxxxxx Xxxxxxxxxx XXXX 57,867 30,373 3,733
00 Xxxxxxxxx Xxxxxxxx XXX 4,635 16,780 3,334
31 Brookhollow Shopping Center MLML 42,145 10,694 3,336
32 La Reina Plaza MLML 68,835 14,400 129,000 1,045
33 Army Corp Engineer Building MLML 4,154
34 Himmarshee Landing CRF 854
35 Plaza at Hurstbourne Green MLML 7,726 18,201 700,000 2,253
00 Xxxxxxxxx Xxxxxx CRF 46,445 30,178 2,083
00 Xxxxxx Xxxx Xxxx Xxxx Xxxxxxx XXX 31,433 71,488 28,000
38 Trappe Shopping Center MLML 136,737 28,842 2,135
00 XXXX - Xxxxxxxxxxxx Xxxxxxxx XXX 3,891
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX 000
41 Hilton Garden Inn - Oxnard MLML 39,062 43,968 4% of Gross Revenues
42 Southern California Ground Lease Portfolio CRF
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Xxxxxx Xxxxxx CRF
42.04 XxXxxxxxx Xxxxxx CRF
43 Cranberry Plaza MLML 42,707 3,000 2,379
44 GN Resound MLML
45 Pueblo Crossing CRF 71,202 13,473 1,142
00 Xxxxxxx Xxxxxxxxx Xxxx CRF 1,514 529,030
00 XxXxxx Xxxxx Xxxxxxxxxx XXXX 15,857 4,458
48 New City Office MLML 53,793 6,151 922
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF 41,435 13,241
00 Xxxxxxxxxx Xxxxxxx CRF 1,450,000
51 60 East Lake CRF 107,500 6,449 750,000 1,019
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX 50,327 1,063
00 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx CRF 44,640 13,510
54 0000 Xxxxxxxx Xxxxxxxxx XXXX 43,200 876
55 000 Xxxx Xxxxx Xxxxxx XXX
56 Desert Xxxx Shopping Center MLML 2,051 23,995 568
00 Xxxxxxx Xxxxx XXXX 000
00 Xxxxxxxxx Xxxxxxx MLML 67,523 101,638 517
59 Trainers Station Shopping Center MLML 31,683 31,112 1,524
60 Porterwood Shopping Center MLML 26,225 1,234
00 Xxxxxxxx Xxxxxxx Xxxx Center CRF 22,382 16,093 267,600 1,249
62 Virginia Eye Development MLML 1,187 710
63 Quail Creek Apartments MLML 5,790 6,718 3,758
64 Danovitz Portfolio MLML 92,752 7,084
64.01 00 Xxxx Xxxx XXXX
64.02 Parkway East Professional Center MLML
64.03 000 Xxxx Xxxx XXXX
65 Sherwood Village Apartments MLML 5,470 10,938
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx XXX 95,044 910
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF 15,009
68 Bond Hotel Master Leases CRF 1,050,000
00 Xxxxxxxxxxx Xxxx XXXX 17,336 16,612 2,979
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF 8,293 12,194 1,753
71 International Promenade CRF 9,908 12,638 595
72 Centennial Pavilion CRF 2,186 80,394
73 000 Xxxx Xxxxxxxx Xxx CRF 13,703 4,112
74 R & R Plaza CRF 7,360
00 Xxxx Xxxxxx Xxxxx CRF 48,178 272,800 1,059
76 Garden Office Park MLML 2,866 892
77 PCG Corporate Center MLML 15,503 3,205 689
78 000 Xxxxx 0xx Xxxxxx XXXX 35,073 7,408 1,419
00 Xxxxxxx Xxxx CRF 41,890
MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX TI/LC TI/LC RE TAX
LOAN # PROPERTY NAME ORIGINATOR RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($)
------ ------------------------------------------- ---------- --------------- ----------- --------------- -----------
20.02 0000 Xxxx 000xx Xxxxxx CRF
20.03 0000 Xxxx 00xx Xxxxxx CRF
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX
21 La Crosse Industrial MLML 35,794
22 Kahana Gateway Professional Center - Retail MLML 20,250 9,520
23 Villages at Paseo del Sol MLML 3,583 86,000 14,863
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX 13,672 34,028
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
25 Village Faire Shopping Center MLML 8,000 180,000 22,557
26 Guardian Self Storage CRF 20,846
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Jacobson Distribution CRF 6,861 411,650 45,526
27.01 Jacobson Distribution 1 CRF
27.02 Jacobson Distribution 2 CRF
28 University Collection Shopping Center MLML 18,525
29 Lakeshore Apartments MLML 134,388 14,467
30 Southdown Pavilion CRF 50,000 2,318
31 Brookhollow Shopping Center MLML 19,839
32 La Reina Plaza MLML 62,716 3,889 140,000 12,230
33 Army Corp Engineer Building MLML 7,066
34 Himmarshee Landing CRF 7,259 14,060
35 Plaza at Hurstbourne Green MLML 7,726
36 Singleton Square CRF 11,612
37 Hilton Salt Lake City Airport CRF 15,716
38 Trappe Shopping Center MLML 128,100 21,056
39 FNBA - Fountainhead Building CRF 233,452
40 Encino Valley Shopping Center MLML 24,000 12,074
41 Hilton Garden Inn - Oxnard MLML 24,588
42 Southern California Ground Lease Portfolio CRF
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Culver Marina CRF
42.04 McConnell Marina CRF
43 Cranberry Plaza MLML 6,875 21,353
44 GN Resound MLML 10,181
45 Pueblo Crossing CRF 5,000 275,000 25,000
46 Augusta Corporate Park CRF 7,750 300,000 8,960
47 McKamy Lakes Apartments MLML 18,915
48 New City Office MLML 4,611 17,931
49 Hilton Garden Inn Garden Grove CRF 11,745
50 Widewaters Commons CRF
51 60 East Lake CRF 25,000
52 Da Vinci Court Apartments CRF 4,575
53 Hampton Inn & Suites Garden Grove CRF 11,547
54 6221 Wilshire Boulevard MLML 21,000 4,167 300,000 5,245
55 555 West Beech Street CRF 18,992
56 Desert Glen Shopping Center MLML 3,144
57 Victory Plaza MLML 4,807
58 Tidewater Estates MLML 5,558
59 Trainers Station Shopping Center MLML 6,385
60 Porterwood Shopping Center MLML 11,554
61 Crenshaw Medical Arts Center CRF 44,964 6,243 224,736 7,461
62 Virginia Eye Development MLML 4,717 2,724
63 Quail Creek Apartments MLML 90,192 5,790
64 Danovitz Portfolio MLML 15,459
64.01 10 Duff Road MLML
64.02 Parkway East Professional Center MLML
64.03 400 Seco Road MLML
65 Sherwood Village Apartments MLML 5,459
66 State Street Business Park CRF 50,000 21,557
67 934 South Los Angeles Street CRF 5,003
68 Bond Hotel Master Leases CRF
69 Battlefield Park MLML 71,500 4,334
70 Baggett Office & Shaw #2 Warehouse CRF 8,293
71 International Promenade CRF 3,345 120,420 4,954
72 Centennial Pavilion CRF 2,633 125,000 3,885
73 755 East Virginia Way CRF 4,570
74 R & R Plaza CRF 5,303 150,000 7,360
75 Moon Valley Plaza CRF 1,589 57,198 9,836
76 Garden Office Park MLML 2,248
77 PCG Corporate Center MLML 7,752
78 119 North 4th Street MLML 2,083 125,000 11,691
79 Cambray Park CRF 5,564
MONTHLY MONTHLY
INS. OTHER GRACE
LOAN # PROPERTY NAME ORIGINATOR RESERVE ($) RESERVE ($) PERIOD
------ ------------------------------------------- ---------- ----------- ----------- ------
20.02 1344 West 105th Street CRF
20.03 1001 East 87th Street CRF
20.04 1798 and 1800 Busse Highway CRF
21 La Crosse Industrial MLML 7,776 5
22 Kahana Gateway Professional Center - Retail MLML 5,260 5
23 Villages at Paseo del Sol MLML 2,625 5
24 Breckenridge Park Portfolio CRF 8,587 0
24.01 Breckenridge I-III CRF
24.02 Breckenridge IV-V CRF
25 Village Faire Shopping Center MLML 2,528 5
26 Guardian Self Storage CRF 3,146 0
26.01 Storage I (CA) CRF
26.02 Self Storage HR CRF
26.03 Self Storage WD CRF
26.04 Self Storage III (SM) CRF
27 Jacobson Distribution CRF 0
27.01 Jacobson Distribution 1 CRF
27.02 Jacobson Distribution 2 CRF
28 University Collection Shopping Center MLML 6,440 5
29 Lakeshore Apartments MLML 6,297 5
30 Southdown Pavilion CRF 8,390 0
31 Brookhollow Shopping Center MLML 3,565 5
32 La Reina Plaza MLML 2,057 5
33 Army Corp Engineer Building MLML 5
34 Himmarshee Landing CRF 10,125 0
35 Plaza at Hurstbourne Green MLML 3,033 5
36 Singleton Square CRF 2,515 0
37 Hilton Salt Lake City Airport CRF 8,015 0
38 Trappe Shopping Center MLML 2,622 5
39 FNBA - Fountainhead Building CRF 0
40 Encino Valley Shopping Center MLML 5
41 Hilton Garden Inn - Oxnard MLML 5,496 5
42 Southern California Ground Lease Portfolio CRF 0
42.01 Buckingham Heights Business Park CRF
42.02 Watt Leed Distribution Facility CRF
42.03 Culver Marina CRF
42.04 McConnell Marina CRF
43 Cranberry Plaza MLML 5
44 GN Resound MLML 4
45 Pueblo Crossing CRF 2,245 0
46 Augusta Corporate Park CRF 1,514 0
47 McKamy Lakes Apartments MLML 2,643 5
48 New City Office MLML 1,538 5
49 Hilton Garden Inn Garden Grove CRF 0
50 Widewaters Commons CRF 0
51 60 East Lake CRF 586 0
52 Da Vinci Court Apartments CRF 2,643 0
53 Hampton Inn & Suites Garden Grove CRF 0
54 6221 Wilshire Boulevard MLML 5
55 555 West Beech Street CRF 0
56 Desert Glen Shopping Center MLML 684 5
57 Victory Plaza MLML 5
58 Tidewater Estates MLML 1,000 Variable 5
59 Trainers Station Shopping Center MLML 3,111 5
60 Porterwood Shopping Center MLML 3,666 5
61 Crenshaw Medical Arts Center CRF 1,463 0
62 Virginia Eye Development MLML 593 5
63 Quail Creek Apartments MLML 2,239 5
64 Danovitz Portfolio MLML 2,361 5
64.01 10 Duff Road MLML
64.02 Parkway East Professional Center MLML
64.03 400 Seco Road MLML
65 Sherwood Village Apartments MLML 1,367 5
66 State Street Business Park CRF 0
67 934 South Los Angeles Street CRF 567 0
68 Bond Hotel Master Leases CRF 0
69 Battlefield Park MLML 1,510 5
70 Baggett Office & Shaw #2 Warehouse CRF 2,032 0
71 International Promenade CRF 1,053 0
72 Centennial Pavilion CRF 1,093 0
73 755 East Virginia Way CRF 3,958 0
74 R & R Plaza CRF 1,042 0
75 Moon Valley Plaza CRF 0
76 Garden Office Park MLML 955 5
77 PCG Corporate Center MLML 1,603 5
78 119 North 4th Street MLML 741 5
79 Cambray Park CRF 3,491 0
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE
------ ---------------------------------------------------------- ---------- --------------------
80 Sherman Square MLML Retail
81 Cambridge Quail CRF Office
82 Kahana Gateway Professional Center - Office MLML Office
83 Generations Medical Center CRF Office
84 17525 Ventura Blvd MLML Office
85 Junction Shoppes CRF Retail
86 1963 Grand Concourse CRF Office
87 501 East Virginia Way CRF Multifamily
88 San Leandro Medical Office CRF Office
89 Rainbow Diablo Medical Building CRF Office
90 Country Lakes Apartments CRF Multifamily
91 McCar Homes CRF Office
92 Cheyenne Fountains CRF Retail
93 135 West 27th Street Commercial Corp MLML Office
94 Times Square Retail Center CRF Retail
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF Multifamily
95.01 Palmdale Meadows Apartments CRF Multifamily
95.02 12th Street Courtyard East CRF Multifamily
96 North Main Center - Rockford CRF Retail
97 Endicott Apartments MLML Multifamily
98 Mesa K-Mart (95) MLML Retail
99 Hunters Point Apartments CRF Multifamily
100 Santee Galleria CRF Retail
101 Glendale Kmart (95) MLML Retail
102 Clark Office Building CRF Office
103 Walgreen's - Chula Vista MLML Retail
104 Hickory Hill Estates CRF Multifamily
105 Keystone Center MLML Office
106 Casa Grande Gateway CRF Retail
107 16812 Sherman Way CRF Multifamily
108 Brookhurst Plaza MLML Retail
109 Eastern Boulevard Plaza CRF Retail
110 Norco Town & Country Business Center CRF Industrial
111 Westlake Professional Center CRF Office
112 1318-1332 Wilshire CRF Retail
113 Crestview Apartments MLML Multifamily
114 Redmond Ridge Marketplace MLML Retail
115 Walgreens 24th & Florin CRF Retail
116 Ashby Apartments CRF Multifamily
117 Summit Marketplace CRF Retail
118 Alii Sunset Plaza CRF Retail
119 Rancho Plaza - Thousand Oaks CRF Office
120 Woodley Towers CRF Multifamily
121 Sunnyside Town Center MLML Retail
122 Walgreen's Fremont MLML Retail
123 Watson Business Center (95) MLML Industrial
124 Northridge Plaza CRF Retail
125 Canton Corners Shopping Center (95) MLML Retail
126 2823 Bristol CRF Office
127 John R. Wood Realty MLML Office
128 Telegraph Avenue Medical Office Building CRF Office
129 Beloit Mall CRF Retail
130 Dublin Corners MLML Retail
131 Super K-Mart Center (95) MLML Retail
132 1638 Placentia Avenue CRF Industrial
133 Osco Drug Tucson - Sunrise CRF Retail
134 Osco Drug Tucson - Broadway CRF Retail
135 The Bluffs Of Burnsville (95) MLML Multifamily
136 4120-4160 Kingsley Apartments CRF Multifamily
137 861 South Catalina Street CRF Multifamily
138 Storage Plus - Sandy CRF Self Storage
139 Settlement Apartments (95) MLML Multifamily
140 Cypresswood Center MLML Retail
141 Walgreens Tomball CRF Retail
142 Medical Specialties Center (95) MLML Office
143 Harbor Side Apartments (95) MLML Multifamily
144 Starbucks - Verizon CRF Retail
145 Sawtelle Place CRF Retail
146 Regency Apartments MLML Multifamily
147 Kennestone Professional Bldg. (95) MLML Office
148 Victorville Pavilion Shops CRF Retail
149 Lakeside Apartments CRF Multifamily
150 Edmonds Professional Center (95) MLML Office
151 Off Broadway Plaza CRF Office
152 Meadow View Mobile Home Park CRF Manufactured Housing
LOAN # PROPERTY NAME ORIGINATOR STREET ADDRESS
------ ---------------------------------------------------------- ---------- ----------------------------------------------------
80 Sherman Square MLML 7203-19 North Van Nuys Boulevard and 14503-523
West Sherman Way
81 Cambridge Quail CRF 1601-1681 East Flamingo Road
82 Kahana Gateway Professional Center - Office MLML 10 Hoohui Road
83 Generations Medical Center CRF 6301 South McClintock Drive
84 17525 Ventura Blvd MLML 17525 Ventura Boulevard
85 Junction Shoppes CRF 183 West Apache Trail
86 1963 Grand Concourse CRF 1963 Grand Concourse
87 501 East Virginia Way CRF 501 East Virginia Way
88 San Leandro Medical Office CRF 13851 East 14th Street
89 Rainbow Diablo Medical Building CRF 5495 South Rainbow Boulevard
90 Country Lakes Apartments CRF 2714 Ridgewood Avenue
91 McCar Homes CRF 4125 Old Milton Parkway
92 Cheyenne Fountains CRF 7450 West Cheyenne Avenue
93 135 West 27th Street Commercial Corp MLML 135 West 27th Street
94 Times Square Retail Center CRF 4012, 4016, 4020 South Rainbow and 6820
West Flamingo Road
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF Various
95.01 Palmdale Meadows Apartments CRF 1617 East Avenue R
95.02 12th Street Courtyard East CRF 38675 and 38707 12th Street East
96 North Main Center - Rockford CRF NWC of North Main Street and Riverside Boulevard
97 Endicott Apartments MLML 101 West 81st Street
98 Mesa K-Mart (95) MLML 1445 South Power Road
99 Hunters Point Apartments CRF 1422 Hunter's Point Drive
100 Santee Galleria CRF 1048 Santee Street
101 Glendale Kmart (95) MLML 6767 West Bell Road
102 Clark Office Building CRF 5111 & 5131 South Ridgewood Avenue
103 Walgreen's - Chula Vista MLML 1115 3rd Avenue
104 Hickory Hill Estates CRF 427 Mill Road
105 Keystone Center MLML 135 and 139 Fox Road
106 Casa Grande Gateway CRF 1659 East Florence Boulevard
107 16812 Sherman Way CRF 16812 Sherman Way
108 Brookhurst Plaza MLML 14092-14114 Brookhurst Street
109 Eastern Boulevard Plaza CRF 2424 Eastern Boulevard
110 Norco Town & Country Business Center CRF 1780, 1790 and 1880 Town & Country Drive
111 Westlake Professional Center CRF 3180 Willow Lane
112 1318-1332 Wilshire CRF 1318-1332 Wilshire Boulevard
113 Crestview Apartments MLML 2700 Temple Crest Drive
114 Redmond Ridge Marketplace MLML 22500 Northeast Marketplace Drive
115 Walgreens 24th & Florin CRF 7155 24th Street
116 Ashby Apartments CRF 800-808 South Hobart Boulevard
117 Summit Marketplace CRF 385 Crossing Drive
118 Alii Sunset Plaza CRF 75-5799 Alii Drive
119 Rancho Plaza - Thousand Oaks CRF 60 and 100 Rancho Road
120 Woodley Towers CRF 8614 Woodley Avenue
121 Sunnyside Town Center MLML 10201-10225 Southeast Sunnyside Road
122 Walgreen's Fremont MLML 1435 East 23rd Street
123 Watson Business Center (95) MLML 1930 East Carson Street; 21720, 21730, 21818 & 22010
South Wilmington Avenue; 2040 East 22nd Street;
23803 Wilmington Avenue; 19433 Laurel Park Road &
19520 Rancho Way
124 Northridge Plaza CRF 2934 North Hills Street
125 Canton Corners Shopping Center (95) MLML 1750 Marietta Highway
126 2823 Bristol CRF 2823-2835 South Bristol Street
127 John R. Wood Realty MLML 2600 Immokalee Road
128 Telegraph Avenue Medical Office Building CRF 3017 Telegraph Avenue
129 Beloit Mall CRF 2787 Milwaukee Road
130 Dublin Corners MLML 4520, 4524, 4526 Dublin Boulevard
131 Super K-Mart Center (95) MLML 990 North Kinzie Avenue
132 1638 Placentia Avenue CRF 1638 Placentia Avenue
133 Osco Drug Tucson - Sunrise CRF 6895 East Sunrise Drive
134 Osco Drug Tucson - Broadway CRF 7449 East Broadway Boulevard
135 The Bluffs Of Burnsville (95) MLML 2800 Selkirk Drive
136 4120-4160 Kingsley Apartments CRF 4120-4160 Kinsley Street
137 861 South Catalina Street CRF 861 South Catalina Street
138 Storage Plus - Sandy CRF 8411 South State Street
139 Settlement Apartments (95) MLML 1007 130th Avenue Southwest
140 Cypresswood Center MLML 17500-17520 Kuykendahl Road
141 Walgreens Tomball CRF 28426 State Highway 249
142 Medical Specialties Center (95) MLML 415 North Center Street
143 Harbor Side Apartments (95) MLML 1570 North Prospect Avenue
144 Starbucks - Verizon CRF 13780-13890 Wade Hamilton Boulevard
145 Sawtelle Place CRF 1638-1640 Sawtelle Place
146 Regency Apartments MLML 1401 Montclair Road
147 Kennestone Professional Bldg. (95) MLML 2550 Windy Hill Road
148 Victorville Pavilion Shops CRF 14190 Bear Valley Road
149 Lakeside Apartments CRF 112 South Little Flower
150 Edmonds Professional Center (95) MLML 7315 212th Street Southwest
151 Off Broadway Plaza CRF 305 17th Avenue SW
152 Meadow View Mobile Home Park CRF 2384 State Route 350
LOAN # PROPERTY NAME ORIGINATOR CITY COUNTY STATE
------ ---------------------------------------------------------- ---------- --------------- -------------- -----
80 Sherman Square MLML Van Nuys Los Angeles CA
81 Cambridge Quail CRF Las Vegas Clark NV
82 Kahana Gateway Professional Center - Office MLML Lahaina Maui HI
83 Generations Medical Center CRF Tempe Maricopa AZ
84 17525 Ventura Blvd MLML Encino Los Angeles CA
85 Junction Shoppes CRF Apache Junction Pinal AZ
86 1963 Grand Concourse CRF Bronx Bronx NY
87 501 East Virginia Way CRF Barstow San Bernardino CA
88 San Leandro Medical Office CRF San Leandro Alameda CA
89 Rainbow Diablo Medical Building CRF Las Vegas Clark NV
90 Country Lakes Apartments CRF Sanford Seminole FL
91 McCar Homes CRF Alpharetta Fulton GA
92 Cheyenne Fountains CRF Las Vegas Clark NV
93 135 West 27th Street Commercial Corp MLML New York New York NY
94 Times Square Retail Center CRF Las Vegas Clark NV
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF Palmdale Los Angeles CA
95.01 Palmdale Meadows Apartments CRF Palmdale Los Angeles CA
95.02 12th Street Courtyard East CRF Palmdale Los Angeles CA
96 North Main Center - Rockford CRF Rockford Winnebago IL
97 Endicott Apartments MLML New York New York NY
98 Mesa K-Mart (95) MLML Mesa Maricopa AZ
99 Hunters Point Apartments CRF Zionsville Boone IN
100 Santee Galleria CRF Los Angeles Los Angeles CA
101 Glendale Kmart (95) MLML Glendale Maricopa AZ
102 Clark Office Building CRF Port Orange Volusia FL
103 Walgreen's - Chula Vista MLML Chula Vista San Diego CA
104 Hickory Hill Estates CRF East Aurora Erie NY
105 Keystone Center MLML Knoxville Knox TN
106 Casa Grande Gateway CRF Casa Grande Pinal AZ
107 16812 Sherman Way CRF Van Nuys Los Angeles CA
108 Brookhurst Plaza MLML Garden Grove Orange CA
109 Eastern Boulevard Plaza CRF York York PA
110 Norco Town & Country Business Center CRF Norco Riverside CA
111 Westlake Professional Center CRF Thousand Oaks Ventura CA
112 1318-1332 Wilshire CRF Santa Monica Los Angeles CA
113 Crestview Apartments MLML Birmingham Jefferson AL
114 Redmond Ridge Marketplace MLML Redmond King WA
115 Walgreens 24th & Florin CRF Sacramento Sacramento CA
116 Ashby Apartments CRF Los Angeles Los Angeles CA
117 Summit Marketplace CRF Lafayette Boulder CO
118 Alii Sunset Plaza CRF Kailua Kona Hawaii HI
119 Rancho Plaza - Thousand Oaks CRF Thousand Oaks Ventura CA
120 Woodley Towers CRF North Hills Los Angeles CA
121 Sunnyside Town Center MLML Clackamas Clackamas OR
122 Walgreen's Fremont MLML Fremont Dodge NE
123 Watson Business Center (95) MLML Carson Los Angeles CA
124 Northridge Plaza CRF Meridian Lauderdale MS
125 Canton Corners Shopping Center (95) MLML Canton Cherokee GA
126 2823 Bristol CRF Santa Ana Orange CA
127 John R. Wood Realty MLML Naples Collier FL
128 Telegraph Avenue Medical Office Building CRF Berkeley Alameda CA
129 Beloit Mall CRF Beloit Rock WI
130 Dublin Corners MLML Dublin Alameda CA
131 Super K-Mart Center (95) MLML Bradley Kankakee IL
132 1638 Placentia Avenue CRF Costa Mesa Orange CA
133 Osco Drug Tucson - Sunrise CRF Tucson Pima AZ
134 Osco Drug Tucson - Broadway CRF Tucson Pima AZ
135 The Bluffs Of Burnsville (95) MLML Burnsville Dakota MN
136 4120-4160 Kingsley Apartments CRF Montclair San Bernardino CA
137 861 South Catalina Street CRF Los Angeles Los Angeles CA
138 Storage Plus - Sandy CRF Sandy Salt Lake UT
139 Settlement Apartments (95) MLML Everett Snohomish WA
140 Cypresswood Center MLML Spring Harris TX
141 Walgreens Tomball CRF Tomball Harris TX
142 Medical Specialties Center (95) MLML Hickory Catawba NC
143 Harbor Side Apartments (95) MLML Milwaukee Milwaukee WI
144 Starbucks - Verizon CRF Greer Greenville SC
145 Sawtelle Place CRF Los Angeles Los Angeles CA
146 Regency Apartments MLML Birmingham Jefferson AL
147 Kennestone Professional Bldg. (95) MLML Marietta Cobb GA
148 Victorville Pavilion Shops CRF Victorville San Bernardino CA
149 Lakeside Apartments CRF El Paso El Paso TX
150 Edmonds Professional Center (95) MLML Edmonds Snohomish WA
151 Off Broadway Plaza CRF Minot Ward ND
152 Meadow View Mobile Home Park CRF Macedon Wayne NY
CUT-OFF DATE ORIGINAL
LOAN # PROPERTY NAME ORIGINATOR ZIP CODE BALANCE ($) BALANCE ($)
------ ---------------------------------------------------------- ---------- ------------- ------------ -----------
80 Sherman Square MLML 91405 6,235,621 6,250,000
81 Cambridge Quail CRF 89119 6,185,762 6,200,000
82 Kahana Gateway Professional Center - Office MLML 96761 6,150,000 6,150,000
83 Generations Medical Center CRF 85283 6,100,000 6,100,000
84 17525 Ventura Blvd MLML 91316 6,050,000 6,050,000
85 Junction Shoppes CRF 85220 6,000,000 6,000,000
86 1963 Grand Concourse CRF 10453 5,991,986 6,000,000
87 501 East Virginia Way CRF 92311 5,979,545 6,000,000
88 San Leandro Medical Office CRF 94578 5,900,000 5,900,000
89 Rainbow Diablo Medical Building CRF 89118 5,880,000 5,880,000
90 Country Lakes Apartments CRF 32773 5,821,989 5,835,000
91 McCar Homes CRF 30005 5,732,890 5,750,000
92 Cheyenne Fountains CRF 89149 5,590,000 5,590,000
93 135 West 27th Street Commercial Corp MLML 10001 5,500,000 5,500,000
94 Times Square Retail Center CRF 89103 5,500,000 5,500,000
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 93550 5,300,000 5,300,000
95.01 Palmdale Meadows Apartments CRF 93550 2,835,000 2,835,000
95.02 12th Street Courtyard East CRF 93550 2,465,000 2,465,000
96 North Main Center - Rockford CRF 60187 5,290,023 5,320,000
97 Endicott Apartments MLML 10024 5,100,000 5,100,000
98 Mesa K-Mart (95) MLML 85206 5,019,971 6,560,000
99 Hunters Point Apartments CRF 46077 5,000,000 5,000,000
100 Santee Galleria CRF 90015 4,976,791 5,000,000
101 Glendale Kmart (95) MLML 85308 4,966,525 6,450,000
102 Clark Office Building CRF 32127 & 32174 4,933,957 4,950,000
103 Walgreen's - Chula Vista MLML 91911 4,788,172 4,800,000
104 Hickory Hill Estates CRF 14052 4,754,148 4,800,000
105 Keystone Center MLML 37922 4,600,000 4,600,000
106 Casa Grande Gateway CRF 85222 4,382,597 4,410,000
107 16812 Sherman Way CRF 91406 4,300,000 4,300,000
108 Brookhurst Plaza MLML 92843 4,190,000 4,190,000
109 Eastern Boulevard Plaza CRF 17402 4,150,000 4,150,000
110 Norco Town & Country Business Center CRF 92860 4,000,000 4,000,000
111 Westlake Professional Center CRF 91361 3,944,708 3,950,000
112 1318-1332 Wilshire CRF 90403 3,827,326 3,840,000
113 Crestview Apartments MLML 35209 3,780,000 3,780,000
114 Redmond Ridge Marketplace MLML 98053 3,740,850 3,750,000
115 Walgreens 24th & Florin CRF 95822 3,695,564 3,700,000
116 Ashby Apartments CRF 90005 3,550,000 3,550,000
117 Summit Marketplace CRF 80026 3,500,000 3,500,000
118 Alii Sunset Plaza CRF 96740 3,488,405 3,500,000
119 Rancho Plaza - Thousand Oaks CRF 91362 3,400,000 3,400,000
120 Woodley Towers CRF 91343 3,350,000 3,350,000
121 Sunnyside Town Center MLML 97015 3,300,000 3,300,000
122 Walgreen's Fremont MLML 68025 3,294,525 3,300,000
123 Watson Business Center (95) MLML 90810 3,159,531 8,000,000
124 Northridge Plaza CRF 39305 3,076,895 3,100,000
125 Canton Corners Shopping Center (95) MLML 30114 2,982,134 5,910,143
126 2823 Bristol CRF 92704 2,937,225 2,950,000
127 John R. Wood Realty MLML 34110 2,874,005 2,880,000
128 Telegraph Avenue Medical Office Building CRF 94705 2,700,000 2,700,000
129 Beloit Mall CRF 53511 2,696,416 2,700,000
130 Dublin Corners MLML 94568 2,600,000 2,600,000
131 Super K-Mart Center (95) MLML 60915 2,480,161 3,270,000
132 1638 Placentia Avenue CRF 92627 2,400,000 2,400,000
133 Osco Drug Tucson - Sunrise CRF 85750 2,396,798 2,400,000
134 Osco Drug Tucson - Broadway CRF 85710 2,097,198 2,100,000
135 The Bluffs Of Burnsville (95) MLML 55337 1,997,040 2,475,060
136 4120-4160 Kingsley Apartments CRF 91763 1,995,459 2,000,000
137 861 South Catalina Street CRF 90005 1,993,699 2,000,000
138 Storage Plus - Sandy CRF 84070 1,956,630 1,965,000
139 Settlement Apartments (95) MLML 98204 1,929,651 4,400,000
140 Cypresswood Center MLML 77379 1,860,000 1,860,000
141 Walgreens Tomball CRF 77375 1,845,948 1,850,000
142 Medical Specialties Center (95) MLML 28601 1,814,511 3,100,000
143 Harbor Side Apartments (95) MLML 53202 1,743,601 2,979,546
144 Starbucks - Verizon CRF 29650 1,700,000 1,700,000
145 Sawtelle Place CRF 90025 1,697,729 1,700,000
146 Regency Apartments MLML 35210 1,674,000 1,674,000
147 Kennestone Professional Bldg. (95) MLML 30067 1,499,589 3,829,090
148 Victorville Pavilion Shops CRF 92392 1,450,000 1,450,000
149 Lakeside Apartments CRF 79915 1,312,440 1,330,000
150 Edmonds Professional Center (95) MLML 98026 1,219,594 5,300,000
151 Off Broadway Plaza CRF 58701 1,073,572 1,075,000
152 Meadow View Mobile Home Park CRF 14502 996,219 1,000,000
MONTHLY
IO MONTHLY IO ANNUAL P&I DEBT
LOAN # PROPERTY NAME ORIGINATOR DEBT SERVICE ($) DEBT SERVICE ($) SERVICE ($)
------ ---------------------------------------------------------- ---------- ---------------- ---------------- -----------
80 Sherman Square MLML 35,954.85
81 Cambridge Quail CRF 35,710.27
82 Kahana Gateway Professional Center - Office MLML 27,446.23 329,354.71 34,082.52
83 Generations Medical Center CRF 29,403.20 352,838.40 35,423.76
84 17525 Ventura Blvd MLML 28,252.31 339,027.72 34,453.79
85 Junction Shoppes CRF 27,456.11 329,473.33 33,751.80
86 1963 Grand Concourse CRF 35,780.38
87 501 East Virginia Way CRF 33,392.84
88 San Leandro Medical Office CRF 28,763.18 345,158.19 34,505.80
89 Rainbow Diablo Medical Building CRF 27,473.35 329,680.17 33,496.75
90 Country Lakes Apartments CRF 34,274.21
91 McCar Homes CRF 34,622.17
92 Cheyenne Fountains CRF 26,996.85 323,962.24 32,501.09
93 135 West 27th Street Commercial Corp MLML 40,201.05
94 Times Square Retail Center CRF 32,552.15
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 31,640.01
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF 29,377.24
97 Endicott Apartments MLML 22,958.50 275,502.00
98 Mesa K-Mart (95) MLML 53,044.12
99 Hunters Point Apartments CRF 24,122.11 289,465.28 29,051.71
100 Santee Galleria CRF 27,517.35
101 Glendale Kmart (95) MLML 52,459.77
102 Clark Office Building CRF 28,385.70
103 Walgreen's - Chula Vista MLML 26,357.32
104 Hickory Hill Estates CRF 32,248.06
105 Keystone Center MLML 27,579.32
106 Casa Grande Gateway CRF 27,239.50
107 16812 Sherman Way CRF 19,764.07 237,168.89 24,253.30
108 Brookhurst Plaza MLML 21,212.65 254,551.81 25,099.62
109 Eastern Boulevard Plaza CRF 19,355.14 232,261.67 23,615.35
110 Norco Town & Country Business Center CRF 18,959.72 227,516.67
111 Westlake Professional Center CRF 23,479.47
112 1318-1332 Wilshire CRF 21,786.24
113 Crestview Apartments MLML 17,294.16 207,529.88 21,261.27
114 Redmond Ridge Marketplace MLML 20,730.87
115 Walgreens 24th & Florin CRF 20,321.02
116 Ashby Apartments CRF 17,336.66 208,039.86 20,784.54
117 Summit Marketplace CRF 17,003.76 204,045.14 20,425.05
118 Alii Sunset Plaza CRF 19,813.36
119 Rancho Plaza - Thousand Oaks CRF 16,776.48 201,317.78 20,036.29
120 Woodley Towers CRF 14,916.42 178,997.01
121 Sunnyside Town Center MLML 15,176.14 182,113.71 18,619.19
122 Walgreen's Fremont MLML 19,507.19
123 Watson Business Center (95) MLML 81,617.92
124 Northridge Plaza CRF 17,601.46
125 Canton Corners Shopping Center (95) MLML 51,762.25
126 2823 Bristol CRF 16,920.45
127 John R. Wood Realty MLML 17,697.09
128 Telegraph Avenue Medical Office Building CRF 13,048.75 156,585.00 15,705.05
129 Beloit Mall CRF 16,205.23
130 Dublin Corners MLML 12,673.10 152,077.25 15,204.29
131 Super K-Mart Center (95) MLML 26,606.95
132 1638 Placentia Avenue CRF 11,375.83 136,510.00
133 Osco Drug Tucson - Sunrise CRF 14,327.55
134 Osco Drug Tucson - Broadway CRF 12,536.61
135 The Bluffs Of Burnsville (95) MLML 20,344.99
136 4120-4160 Kingsley Apartments CRF 11,608.01
137 861 South Catalina Street CRF 11,658.76
138 Storage Plus - Sandy CRF 11,379.98
139 Settlement Apartments (95) MLML 45,546.60
140 Cypresswood Center MLML 11,227.09
141 Walgreens Tomball CRF 10,996.71
142 Medical Specialties Center (95) MLML 26,171.32
143 Harbor Side Apartments (95) MLML 28,726.12
144 Starbucks - Verizon CRF 7,942.97 95,315.69 9,684.44
145 Sawtelle Place CRF 10,137.78
146 Regency Apartments MLML 7,658.84 91,906.09 9,415.71
147 Kennestone Professional Bldg. (95) MLML 38,940.83
148 Victorville Pavilion Shops CRF 7,179.18 86,150.14
149 Lakeside Apartments CRF 7,775.05
150 Edmonds Professional Center (95) MLML 53,756.13
151 Off Broadway Plaza CRF 6,445.17
152 Meadow View Mobile Home Park CRF 6,901.84
MASTER
ANNUAL P&I DEBT INTEREST PRIMARY SERVICING
LOAN # PROPERTY NAME ORIGINATOR SERVICE ($) RATE % SERVICING FEE FEE
------ ---------------------------------------------------------- ---------- --------------- -------- ------------- ---------
80 Sherman Square MLML 431,458.20 5.6190 0.0100 0.0100
81 Cambridge Quail CRF 428,523.24 5.6300 0.0100 0.0100
82 Kahana Gateway Professional Center - Office MLML 408,990.24 5.2820 0.0100 0.0100
83 Generations Medical Center CRF 425,085.12 5.7050 0.0100 0.0100
84 17525 Ventura Blvd MLML 413,445.48 5.5270 0.0100 0.0100
85 Junction Shoppes CRF 405,021.60 5.4160 0.0100 0.0100
86 1963 Grand Concourse CRF 429,364.56 5.9500 0.0100 0.0100
87 501 East Virginia Way CRF 400,714.08 5.3200 0.0100 0.0100
88 San Leandro Medical Office CRF 414,069.55 5.7700 0.0100 0.0100
89 Rainbow Diablo Medical Building CRF 401,961.00 5.5300 0.0100 0.0100
90 Country Lakes Apartments CRF 411,290.52 5.8100 0.0100 0.0100
91 McCar Homes CRF 415,466.04 6.0400 0.0100 0.0100
92 Cheyenne Fountains CRF 390,013.08 5.7160 0.0100 0.0100
93 135 West 27th Street Commercial Corp MLML 482,412.60 6.2500 0.0100 0.0100
94 Times Square Retail Center CRF 390,625.80 5.8800 0.0100 0.0100
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 379,680.12 5.9600 0.0100 0.0100
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF 352,526.88 5.2500 0.0100 0.0100
97 Endicott Apartments MLML 5.3280 0.0100 0.0100
98 Mesa K-Mart (95) MLML 636,529.44 8.5500 0.0100 0.0100
99 Hunters Point Apartments CRF 348,620.52 5.7100 0.0100 0.0100
100 Santee Galleria CRF 330,208.20 5.2200 0.0100 0.0100
101 Glendale Kmart (95) MLML 629,517.24 8.6200 0.0100 0.0100
102 Clark Office Building CRF 340,628.40 5.5900 0.0100 0.0100
103 Walgreen's - Chula Vista MLML 316,287.84 5.2000 0.0100 0.0100
104 Hickory Hill Estates CRF 386,976.72 5.2140 0.0100 0.0100
105 Keystone Center MLML 330,951.84 6.0000 0.0100 0.0100
106 Casa Grande Gateway CRF 326,874.00 5.5600 0.0100 0.0100
107 16812 Sherman Way CRF 291,039.60 5.4400 0.0100 0.0100
108 Brookhurst Plaza MLML 301,195.44 5.9920 0.0100
109 Eastern Boulevard Plaza CRF 283,384.20 5.5200 0.0100 0.0100
110 Norco Town & Country Business Center CRF 5.6100 0.0100 0.0100
111 Westlake Professional Center CRF 281,753.64 5.9200 0.0100 0.0100
112 1318-1332 Wilshire CRF 261,434.88 5.4930 0.0100 0.0100
113 Crestview Apartments MLML 255,135.24 5.4150 0.0100 0.0100
114 Redmond Ridge Marketplace MLML 248,770.44 5.2600 0.0100
115 Walgreens 24th & Florin CRF 243,852.24 5.5200 0.0100 0.0100
116 Ashby Apartments CRF 249,414.48 5.7800 0.0100 0.0100
117 Summit Marketplace CRF 245,100.60 5.7500 0.0100 0.0100
118 Alii Sunset Plaza CRF 237,760.32 5.4730 0.0100 0.0100
119 Rancho Plaza - Thousand Oaks CRF 240,435.48 5.8400 0.0100 0.0100
120 Woodley Towers CRF 5.2700 0.0100 0.0100
121 Sunnyside Town Center MLML 223,430.28 5.4430 0.0100 0.0100
122 Walgreen's Fremont MLML 234,086.28 5.4670 0.0100 0.0100
123 Watson Business Center (95) MLML 979,415.04 9.1000 0.0100 0.0100
124 Northridge Plaza CRF 211,217.52 5.5000 0.0100 0.0100
125 Canton Corners Shopping Center (95) MLML 621,147.00 8.0000 0.0100 0.0100
126 2823 Bristol CRF 203,045.40 5.5920 0.0100 0.0100
127 John R. Wood Realty MLML 212,365.08 6.2310 0.0100 0.0100
128 Telegraph Avenue Medical Office Building CRF 188,460.60 5.7200 0.0100 0.0100
129 Beloit Mall CRF 194,462.76 6.0100 0.0100 0.0100
130 Dublin Corners MLML 182,451.48 5.7690 0.0100 0.0100
131 Super K-Mart Center (95) MLML 319,283.40 8.6250 0.0100 0.0100
132 1638 Placentia Avenue CRF 5.6100 0.0100 0.0100
133 Osco Drug Tucson - Sunrise CRF 171,930.60 5.9600 0.0100 0.0100
134 Osco Drug Tucson - Broadway CRF 150,439.32 5.9600 0.0100 0.0100
135 The Bluffs Of Burnsville (95) MLML 244,139.88 8.7500 0.0100 0.0100
136 4120-4160 Kingsley Apartments CRF 139,296.12 5.7000 0.0100 0.0100
137 861 South Catalina Street CRF 139,905.12 5.7400 0.0100 0.0100
138 Storage Plus - Sandy CRF 136,559.76 5.6800 0.0100 0.0100
139 Settlement Apartments (95) MLML 546,559.20 9.6000 0.0100 0.0100
140 Cypresswood Center MLML 134,725.08 6.0630 0.0100
141 Walgreens Tomball CRF 131,960.52 5.9200 0.0100 0.0100
142 Medical Specialties Center (95) MLML 314,055.84 8.1250 0.0100 0.0100
143 Harbor Side Apartments (95) MLML 344,713.44 9.4400 0.0100 0.0100
144 Starbucks - Verizon CRF 116,213.28 5.5300 0.0100 0.0100
145 Sawtelle Place CRF 121,653.36 5.9500 0.0100 0.0100
146 Regency Apartments MLML 112,988.52 5.4150 0.0100 0.0100
147 Kennestone Professional Bldg. (95) MLML 467,289.96 9.3750 0.0100 0.0100
148 Victorville Pavilion Shops CRF 5.8600 0.0100 0.0100
149 Lakeside Apartments CRF 93,300.60 5.0000 0.0100 0.0100
150 Edmonds Professional Center (95) MLML 645,073.56 9.0000 0.0100 0.0100
151 Off Broadway Plaza CRF 77,342.04 6.0000 0.0100 0.0100
152 Meadow View Mobile Home Park CRF 82,822.08 6.1200 0.0100 0.0100
NET
TRUSTEE AND SUB SERVICING ADMIN. MORTGAGE
LOAN # PROPERTY NAME ORIGINATOR PAYING AGENT FEE FEE RATE FEE % RATE %
------ ---------------------------------------------------------- ---------- ---------------- ------------- ------ --------
80 Sherman Square MLML 0.0010 0.021 5.5980
81 Cambridge Quail CRF 0.0010 0.021 5.6090
82 Kahana Gateway Professional Center - Office MLML 0.0010 0.021 5.2610
83 Generations Medical Center CRF 0.0010 0.021 5.6840
84 17525 Ventura Blvd MLML 0.0010 0.021 5.5060
85 Junction Shoppes CRF 0.0010 0.021 5.3950
86 1963 Grand Concourse CRF 0.0010 0.021 5.9290
87 501 East Virginia Way CRF 0.0010 0.021 5.2990
88 San Leandro Medical Office CRF 0.0010 0.021 5.7490
89 Rainbow Diablo Medical Building CRF 0.0010 0.021 5.5090
90 Country Lakes Apartments CRF 0.0010 0.021 5.7890
91 McCar Homes CRF 0.0010 0.021 6.0190
92 Cheyenne Fountains CRF 0.0010 0.021 5.6950
93 135 West 27th Street Commercial Corp MLML 0.0010 0.021 6.2290
94 Times Square Retail Center CRF 0.0010 0.021 5.8590
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 0.0010 0.021 5.9390
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF 0.0010 0.021 5.2290
97 Endicott Apartments MLML 0.0010 0.021 5.3070
98 Mesa K-Mart (95) MLML 0.0010 0.021 8.5290
99 Hunters Point Apartments CRF 0.0010 0.021 5.6890
100 Santee Galleria CRF 0.0010 0.021 5.1990
101 Glendale Kmart (95) MLML 0.0010 0.021 8.5990
102 Clark Office Building CRF 0.0010 0.021 5.5690
103 Walgreen's - Chula Vista MLML 0.0010 0.021 5.1790
104 Hickory Hill Estates CRF 0.0010 0.021 5.1930
105 Keystone Center MLML 0.0010 0.021 5.9790
106 Casa Grande Gateway CRF 0.0010 0.021 5.5390
107 16812 Sherman Way CRF 0.0010 0.021 5.4190
108 Brookhurst Plaza MLML 0.0010 0.1000 0.111 5.8810
109 Eastern Boulevard Plaza CRF 0.0010 0.0600 0.081 5.4390
110 Norco Town & Country Business Center CRF 0.0010 0.021 5.5890
111 Westlake Professional Center CRF 0.0010 0.021 5.8990
112 1318-1332 Wilshire CRF 0.0010 0.021 5.4720
113 Crestview Apartments MLML 0.0010 0.021 5.3940
114 Redmond Ridge Marketplace MLML 0.0010 0.1000 0.111 5.1490
115 Walgreens 24th & Florin CRF 0.0010 0.021 5.4990
116 Ashby Apartments CRF 0.0010 0.021 5.7590
117 Summit Marketplace CRF 0.0010 0.021 5.7290
118 Alii Sunset Plaza CRF 0.0010 0.021 5.4520
119 Rancho Plaza - Thousand Oaks CRF 0.0010 0.021 5.8190
120 Woodley Towers CRF 0.0010 0.021 5.2490
121 Sunnyside Town Center MLML 0.0010 0.021 5.4220
122 Walgreen's Fremont MLML 0.0010 0.021 5.4460
123 Watson Business Center (95) MLML 0.0010 0.021 9.0790
124 Northridge Plaza CRF 0.0010 0.021 5.4790
125 Canton Corners Shopping Center (95) MLML 0.0010 0.021 7.9790
126 2823 Bristol CRF 0.0010 0.021 5.5710
127 John R. Wood Realty MLML 0.0010 0.021 6.2100
128 Telegraph Avenue Medical Office Building CRF 0.0010 0.021 5.6990
129 Beloit Mall CRF 0.0010 0.021 5.9890
130 Dublin Corners MLML 0.0010 0.021 5.7480
131 Super K-Mart Center (95) MLML 0.0010 0.021 8.6040
132 1638 Placentia Avenue CRF 0.0010 0.021 5.5890
133 Osco Drug Tucson - Sunrise CRF 0.0010 0.021 5.9390
134 Osco Drug Tucson - Broadway CRF 0.0010 0.021 5.9390
135 The Bluffs Of Burnsville (95) MLML 0.0010 0.021 8.7290
136 4120-4160 Kingsley Apartments CRF 0.0010 0.021 5.6790
137 861 South Catalina Street CRF 0.0010 0.021 5.7190
138 Storage Plus - Sandy CRF 0.0010 0.021 5.6590
139 Settlement Apartments (95) MLML 0.0010 0.021 9.5790
140 Cypresswood Center MLML 0.0010 0.1000 0.111 5.9520
141 Walgreens Tomball CRF 0.0010 0.021 5.8990
142 Medical Specialties Center (95) MLML 0.0010 0.021 8.1040
143 Harbor Side Apartments (95) MLML 0.0010 0.021 9.4190
144 Starbucks - Verizon CRF 0.0010 0.021 5.5090
145 Sawtelle Place CRF 0.0010 0.021 5.9290
146 Regency Apartments MLML 0.0010 0.021 5.3940
147 Kennestone Professional Bldg. (95) MLML 0.0010 0.021 9.3540
148 Victorville Pavilion Shops CRF 0.0010 0.021 5.8390
149 Lakeside Apartments CRF 0.0010 0.021 4.9790
150 Edmonds Professional Center (95) MLML 0.0010 0.021 8.9790
151 Off Broadway Plaza CRF 0.0010 0.021 5.9790
152 Meadow View Mobile Home Park CRF 0.0010 0.021 6.0990
MATURITY/ AMORT
LOAN # PROPERTY NAME ORIGINATOR ACCRUAL TYPE TERM REM. TERM ARD DATE TERM
------ ---------------------------------------------------------- ---------- ------------ ---- --------- --------- -----
80 Sherman Square MLML Actual/360 120 118 1/1/2016 360
81 Cambridge Quail CRF Actual/360 120 118 1/8/2016 360
82 Kahana Gateway Professional Center - Office MLML Actual/360 120 118 1/1/2016 360
83 Generations Medical Center CRF Actual/360 120 119 2/8/2016 360
84 17525 Ventura Blvd MLML Actual/360 120 118 1/1/2016 360
85 Junction Shoppes CRF Actual/360 120 117 12/8/2015 360
86 1963 Grand Concourse CRF Actual/360 60 59 2/8/2011 360
87 501 East Virginia Way CRF Actual/360 120 117 12/8/2015 360
88 San Leandro Medical Office CRF Actual/360 120 119 2/8/2016 360
89 Rainbow Diablo Medical Building CRF Actual/360 120 118 1/8/2016 360
90 Country Lakes Apartments CRF Actual/360 120 118 1/8/2016 360
91 McCar Homes CRF Actual/360 60 57 12/8/2010 360
92 Cheyenne Fountains CRF Actual/360 120 118 1/8/2016 360
93 135 West 27th Street Commercial Corp MLML Actual/360 240 240 3/1/2026 240
94 Times Square Retail Center CRF Actual/360 120 120 3/8/2016 360
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF Actual/360 120 120 3/8/2016 360
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF Actual/360 120 115 10/8/2015 360
97 Endicott Apartments MLML Actual/360 120 118 1/1/2016 0
98 Mesa K-Mart (95) MLML 30/360 300 158 5/1/2019 300
99 Hunters Point Apartments CRF Actual/360 120 118 1/8/2016 360
100 Santee Galleria CRF Actual/360 120 116 11/8/2015 360
101 Glendale Kmart (95) MLML 30/360 300 159 6/1/2019 300
102 Clark Office Building CRF Actual/360 120 117 12/8/2015 360
103 Walgreen's - Chula Vista MLML Actual/360 120 118 1/1/2016 360
104 Hickory Hill Estates CRF Actual/360 120 116 11/8/2015 240
105 Keystone Center MLML Actual/360 120 120 3/1/2016 360
106 Casa Grande Gateway CRF Actual/360 120 116 11/8/2015 300
107 16812 Sherman Way CRF Actual/360 120 117 12/8/2015 360
108 Brookhurst Plaza MLML Actual/360 120 120 3/1/2016 360
109 Eastern Boulevard Plaza CRF Actual/360 84 81 12/8/2012 360
110 Norco Town & Country Business Center CRF Actual/360 120 119 2/8/2016 0
111 Westlake Professional Center CRF Actual/360 120 119 2/8/2016 360
112 1318-1332 Wilshire CRF Actual/360 120 117 12/8/2015 360
113 Crestview Apartments MLML Actual/360 120 118 1/1/2016 360
114 Redmond Ridge Marketplace MLML Actual/360 120 118 1/1/2016 360
115 Walgreens 24th & Florin CRF Actual/360 120 119 2/8/2016 396
116 Ashby Apartments CRF Actual/360 120 116 11/8/2015 360
117 Summit Marketplace CRF Actual/360 120 119 2/8/2016 360
118 Alii Sunset Plaza CRF Actual/360 120 117 12/8/2015 360
119 Rancho Plaza - Thousand Oaks CRF Actual/360 120 117 12/8/2015 360
120 Woodley Towers CRF Actual/360 120 117 12/8/2015 0
121 Sunnyside Town Center MLML Actual/360 120 119 2/1/2016 360
122 Walgreen's Fremont MLML Actual/360 120 119 2/1/2016 324
123 Watson Business Center (95) MLML 30/360 180 46 1/1/2010 180
124 Northridge Plaza CRF Actual/360 120 113 8/8/2015 360
125 Canton Corners Shopping Center (95) MLML Actual/365 215 73 4/1/2012 216
126 2823 Bristol CRF Actual/360 120 116 11/8/2015 360
127 John R. Wood Realty MLML Actual/360 108 106 1/1/2015 360
128 Telegraph Avenue Medical Office Building CRF Actual/360 120 119 2/8/2016 360
129 Beloit Mall CRF Actual/360 120 119 2/8/2016 360
130 Dublin Corners MLML Actual/360 120 119 2/1/2016 360
131 Super K-Mart Center (95) MLML Actual/365 299 153 12/1/2018 300
132 1638 Placentia Avenue CRF Actual/360 120 119 2/8/2016 0
133 Osco Drug Tucson - Sunrise CRF Actual/360 120 119 2/8/2016 360
134 Osco Drug Tucson - Broadway CRF Actual/360 120 119 2/8/2016 360
135 The Bluffs Of Burnsville (95) MLML Actual/365 241 114 9/1/2015 300
136 4120-4160 Kingsley Apartments CRF Actual/360 120 118 1/8/2016 360
137 861 South Catalina Street CRF Actual/360 120 117 12/8/2015 360
138 Storage Plus - Sandy CRF Actual/360 120 116 11/8/2015 360
139 Settlement Apartments (95) MLML Actual/365 186 52 7/1/2010 186
140 Cypresswood Center MLML Actual/360 120 120 3/1/2016 360
141 Walgreens Tomball CRF Actual/360 120 118 1/8/2016 360
142 Medical Specialties Center (95) MLML Actual/365 240 94 1/1/2014 240
143 Harbor Side Apartments (95) MLML Actual/365 216 83 2/1/2013 216
144 Starbucks - Verizon CRF Actual/360 120 117 12/8/2015 360
145 Sawtelle Place CRF Actual/360 120 119 2/8/2016 360
146 Regency Apartments MLML Actual/360 120 118 1/1/2016 360
147 Kennestone Professional Bldg. (95) MLML Actual/365 180 46 1/1/2010 188
148 Victorville Pavilion Shops CRF Actual/360 120 120 3/8/2016 0
149 Lakeside Apartments CRF Actual/360 120 112 7/8/2015 300
150 Edmonds Professional Center (95) MLML Actual/365 180 25 4/1/2008 180
151 Off Broadway Plaza CRF Actual/360 120 119 2/8/2016 360
152 Meadow View Mobile Home Park CRF Actual/360 120 118 1/8/2016 264
LOAN # PROPERTY NAME ORIGINATOR REM. AMORT TITLE TYPE ARD LOAN
------ ---------------------------------------------------------- ---------- ---------- ------------- --------
80 Sherman Square MLML 358 Fee No
81 Cambridge Quail CRF 358 Fee No
82 Kahana Gateway Professional Center - Office MLML 360 Fee No
83 Generations Medical Center CRF 360 Fee No
84 17525 Ventura Blvd MLML 360 Fee No
85 Junction Shoppes CRF 360 Fee No
86 1963 Grand Concourse CRF 359 Fee No
87 501 East Virginia Way CRF 357 Fee No
88 San Leandro Medical Office CRF 360 Fee No
89 Rainbow Diablo Medical Building CRF 360 Fee No
90 Country Lakes Apartments CRF 358 Fee No
91 McCar Homes CRF 357 Fee Yes
92 Cheyenne Fountains CRF 360 Fee No
93 135 West 27th Street Commercial Corp MLML 240 Fee No
94 Times Square Retail Center CRF 360 Fee No
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 360 Fee No
95.01 Palmdale Meadows Apartments CRF Fee
95.02 12th Street Courtyard East CRF Fee
96 North Main Center - Rockford CRF 355 Fee No
97 Endicott Apartments MLML 0 Fee No
98 Mesa K-Mart (95) MLML 158 Fee No
99 Hunters Point Apartments CRF 360 Fee No
100 Santee Galleria CRF 356 Fee No
101 Glendale Kmart (95) MLML 159 Fee No
102 Clark Office Building CRF 357 Fee No
103 Walgreen's - Chula Vista MLML 358 Fee No
104 Hickory Hill Estates CRF 236 Fee No
105 Keystone Center MLML 360 Fee No
106 Casa Grande Gateway CRF 296 Fee No
107 16812 Sherman Way CRF 360 Fee No
108 Brookhurst Plaza MLML 360 Fee No
109 Eastern Boulevard Plaza CRF 360 Fee No
110 Norco Town & Country Business Center CRF 0 Fee No
111 Westlake Professional Center CRF 359 Fee No
112 1318-1332 Wilshire CRF 357 Fee No
113 Crestview Apartments MLML 360 Fee No
114 Redmond Ridge Marketplace MLML 358 Fee No
115 Walgreens 24th & Florin CRF 395 Fee No
116 Ashby Apartments CRF 360 Fee No
117 Summit Marketplace CRF 360 Fee No
118 Alii Sunset Plaza CRF 357 Fee/Leasehold No
119 Rancho Plaza - Thousand Oaks CRF 360 Fee No
120 Woodley Towers CRF 0 Fee No
121 Sunnyside Town Center MLML 360 Fee No
122 Walgreen's Fremont MLML 323 Fee No
123 Watson Business Center (95) MLML 46 Fee No
124 Northridge Plaza CRF 353 Fee No
125 Canton Corners Shopping Center (95) MLML 74 Fee No
126 2823 Bristol CRF 356 Fee No
127 John R. Wood Realty MLML 358 Fee No
128 Telegraph Avenue Medical Office Building CRF 360 Fee No
129 Beloit Mall CRF 359 Fee No
130 Dublin Corners MLML 360 Fee No
131 Super K-Mart Center (95) MLML 154 Fee No
132 1638 Placentia Avenue CRF 0 Fee No
133 Osco Drug Tucson - Sunrise CRF 359 Fee No
134 Osco Drug Tucson - Broadway CRF 359 Fee No
135 The Bluffs Of Burnsville (95) MLML 173 Fee No
136 4120-4160 Kingsley Apartments CRF 358 Fee No
137 861 South Catalina Street CRF 357 Fee No
138 Storage Plus - Sandy CRF 356 Fee No
139 Settlement Apartments (95) MLML 52 Fee No
140 Cypresswood Center MLML 360 Fee No
141 Walgreens Tomball CRF 358 Fee No
142 Medical Specialties Center (95) MLML 94 Leasehold No
143 Harbor Side Apartments (95) MLML 83 Fee No
144 Starbucks - Verizon CRF 360 Fee No
145 Sawtelle Place CRF 359 Fee No
146 Regency Apartments MLML 360 Fee No
147 Kennestone Professional Bldg. (95) MLML 54 Fee No
148 Victorville Pavilion Shops CRF 0 Fee No
149 Lakeside Apartments CRF 292 Fee No
150 Edmonds Professional Center (95) MLML 25 Fee No
151 Off Broadway Plaza CRF 359 Fee No
152 Meadow View Mobile Home Park CRF 262 Fee No
ARD ENVIRONMENTAL CROSS
LOAN # PROPERTY NAME ORIGINATOR STEP UP INSURANCE DEFAULTED
------ ---------------------------------------------------------- ---------- --------------------- ------------- ---------
80 Sherman Square MLML No No
81 Cambridge Quail CRF No No
82 Kahana Gateway Professional Center - Office MLML No No
83 Generations Medical Center CRF No No
84 17525 Ventura Blvd MLML No No
85 Junction Shoppes CRF No No
86 1963 Grand Concourse CRF No No
87 501 East Virginia Way CRF No No
88 San Leandro Medical Office CRF No No
89 Rainbow Diablo Medical Building CRF No No
90 Country Lakes Apartments CRF No No
91 McCar Homes CRF Greater of: (i) No No
Initial Interest
Rate plus 5% or (ii)
5yr Treasury Rate
plus 6.19%.
92 Cheyenne Fountains CRF No No
93 135 West 27th Street Commercial Corp MLML No No
94 Times Square Retail Center CRF No No
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF No No
95.01 Palmdale Meadows Apartments CRF No
95.02 12th Street Courtyard East CRF No
96 North Main Center - Rockford CRF No No
97 Endicott Apartments MLML No No
98 Mesa K-Mart (95) MLML No No
99 Hunters Point Apartments CRF No No
100 Santee Galleria CRF No No
101 Glendale Kmart (95) MLML No No
102 Clark Office Building CRF No No
103 Walgreen's - Chula Vista MLML No No
104 Hickory Hill Estates CRF No No
105 Keystone Center MLML No No
106 Casa Grande Gateway CRF No No
107 16812 Sherman Way CRF No No
108 Brookhurst Plaza MLML No No
109 Eastern Boulevard Plaza CRF No No
110 Norco Town & Country Business Center CRF No No
111 Westlake Professional Center CRF No No
112 1318-1332 Wilshire CRF No No
113 Crestview Apartments MLML No No
114 Redmond Ridge Marketplace MLML No No
115 Walgreens 24th & Florin CRF No No
116 Ashby Apartments CRF No No
117 Summit Marketplace CRF No No
118 Alii Sunset Plaza CRF No No
119 Rancho Plaza - Thousand Oaks CRF No No
120 Woodley Towers CRF No No
121 Sunnyside Town Center MLML No No
122 Walgreen's Fremont MLML No No
123 Watson Business Center (95) MLML No No
124 Northridge Plaza CRF No No
125 Canton Corners Shopping Center (95) MLML No No
126 2823 Bristol CRF No No
127 John R. Wood Realty MLML No No
128 Telegraph Avenue Medical Office Building CRF No No
129 Beloit Mall CRF No No
130 Dublin Corners MLML No No
131 Super K-Mart Center (95) MLML No No
132 1638 Placentia Avenue CRF No No
133 Osco Drug Tucson - Sunrise CRF No No
134 Osco Drug Tucson - Broadway CRF No No
135 The Bluffs Of Burnsville (95) MLML No No
136 4120-4160 Kingsley Apartments CRF No No
137 861 South Catalina Street CRF No No
138 Storage Plus - Sandy CRF No No
139 Settlement Apartments (95) MLML No No
140 Cypresswood Center MLML No No
141 Walgreens Tomball CRF No No
142 Medical Specialties Center (95) MLML No No
143 Harbor Side Apartments (95) MLML No No
144 Starbucks - Verizon CRF No No
145 Sawtelle Place CRF No No
146 Regency Apartments MLML No No
147 Kennestone Professional Bldg. (95) MLML No No
148 Victorville Pavilion Shops CRF No No
149 Lakeside Apartments CRF No No
150 Edmonds Professional Center (95) MLML No No
151 Off Broadway Plaza CRF No No
152 Meadow View Mobile Home Park CRF No No
PARTIAL
CROSS DEFEASANCE LETTER OF LOCKBOX IN
LOAN # PROPERTY NAME ORIGINATOR COLLATERALIZED ALLOWED CREDIT PLACE
------ ---------------------------------------------------------- ---------- -------------- ---------- --------- ----------
80 Sherman Square MLML No No No No
81 Cambridge Quail CRF No No No No
82 Kahana Gateway Professional Center - Office MLML No No No No
83 Generations Medical Center CRF No No No Yes
84 17525 Ventura Blvd MLML No No No No
85 Junction Shoppes CRF No No No No
86 1963 Grand Concourse CRF No No No Yes
87 501 East Virginia Way CRF No No No No
88 San Leandro Medical Office CRF No No No No
89 Rainbow Diablo Medical Building CRF No No No No
90 Country Lakes Apartments CRF No No No Yes
91 McCar Homes CRF No No No Yes
92 Cheyenne Fountains CRF No No No No
93 135 West 27th Street Commercial Corp MLML No No No No
94 Times Square Retail Center CRF No No No Yes
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF No No No No
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF No No No Yes
97 Endicott Apartments MLML No No No No
98 Mesa K-Mart (95) MLML No No No No
99 Hunters Point Apartments CRF No No No No
100 Santee Galleria CRF No No No No
101 Glendale Kmart (95) MLML No No No No
102 Clark Office Building CRF No No No No
103 Walgreen's - Chula Vista MLML No No No Yes
104 Hickory Hill Estates CRF No No Yes No
105 Keystone Center MLML No No Yes No
106 Casa Grande Gateway CRF No No No No
107 16812 Sherman Way CRF No No No No
108 Brookhurst Plaza MLML No No No No
109 Eastern Boulevard Plaza CRF No No No Yes
110 Norco Town & Country Business Center CRF No No No No
111 Westlake Professional Center CRF No No No No
112 1318-1332 Wilshire CRF No No No No
113 Crestview Apartments MLML No No Yes No
114 Redmond Ridge Marketplace MLML No No No No
115 Walgreens 24th & Florin CRF No No No Yes
116 Ashby Apartments CRF No No No No
117 Summit Marketplace CRF No No No No
118 Alii Sunset Plaza CRF No No No No
119 Rancho Plaza - Thousand Oaks CRF No No No No
120 Woodley Towers CRF No No No No
121 Sunnyside Town Center MLML No No No No
122 Walgreen's Fremont MLML No No No Yes
123 Watson Business Center (95) MLML No No No No
124 Northridge Plaza CRF No No No No
125 Canton Corners Shopping Center (95) MLML No No No No
126 2823 Bristol CRF No No No No
127 John R. Wood Realty MLML No No No Yes
128 Telegraph Avenue Medical Office Building CRF No No No No
129 Beloit Mall CRF No No No No
130 Dublin Corners MLML No No No Yes
131 Super K-Mart Center (95) MLML No No No No
132 1638 Placentia Avenue CRF No No No No
133 Osco Drug Tucson - Sunrise CRF No No No No
134 Osco Drug Tucson - Broadway CRF No No No Yes
135 The Bluffs Of Burnsville (95) MLML No No No No
136 4120-4160 Kingsley Apartments CRF No No No No
137 861 South Catalina Street CRF No No No No
138 Storage Plus - Sandy CRF No No No No
139 Settlement Apartments (95) MLML No No No No
140 Cypresswood Center MLML No No No No
141 Walgreens Tomball CRF No No No Yes
142 Medical Specialties Center (95) MLML No No No No
143 Harbor Side Apartments (95) MLML No No No No
144 Starbucks - Verizon CRF No No No No
145 Sawtelle Place CRF No No No No
146 Regency Apartments MLML No No Yes No
147 Kennestone Professional Bldg. (95) MLML No No No No
148 Victorville Pavilion Shops CRF No No No No
149 Lakeside Apartments CRF No No No No
150 Edmonds Professional Center (95) MLML No No No No
151 Off Broadway Plaza CRF No No No No
152 Meadow View Mobile Home Park CRF No Yes No Yes
UPFRONT UPFRONT UPFRONT
HOLDBACK ENGINEERING CAPEX ENVIR.
LOAN # PROPERTY NAME ORIGINATOR AMOUNT RESERVE ($) RESERVE ($) RESERVE ($)
------ ---------------------------------------------------------- ---------- -------- ----------- ----------- -----------
80 Sherman Square MLML 26,200
81 Cambridge Quail CRF
82 Kahana Gateway Professional Center - Office MLML 19,219
83 Generations Medical Center CRF
84 17525 Ventura Blvd MLML
85 Junction Shoppes CRF 6,875
86 1963 Grand Concourse CRF
87 501 East Virginia Way CRF
88 San Leandro Medical Office CRF
89 Rainbow Diablo Medical Building CRF
90 Country Lakes Apartments CRF 14,474
91 McCar Homes CRF
92 Cheyenne Fountains CRF 90,000
93 135 West 27th Street Commercial Corp MLML 17,813
94 Times Square Retail Center CRF
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 103,665
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF
97 Endicott Apartments MLML
98 Mesa K-Mart (95) MLML
99 Hunters Point Apartments CRF 9,113
100 Santee Galleria CRF
101 Glendale Kmart (95) MLML
102 Clark Office Building CRF
103 Walgreen's - Chula Vista MLML
104 Hickory Hill Estates CRF
105 Keystone Center MLML
106 Casa Grande Gateway CRF
107 16812 Sherman Way CRF
108 Brookhurst Plaza MLML
109 Eastern Boulevard Plaza CRF
110 Norco Town & Country Business Center CRF
111 Westlake Professional Center CRF 35,625
112 1318-1332 Wilshire CRF
113 Crestview Apartments MLML
114 Redmond Ridge Marketplace MLML
115 Walgreens 24th & Florin CRF
116 Ashby Apartments CRF
117 Summit Marketplace CRF
118 Alii Sunset Plaza CRF 18,750
119 Rancho Plaza - Thousand Oaks CRF
120 Woodley Towers CRF 869
121 Sunnyside Town Center MLML 31,157 350,000
122 Walgreen's Fremont MLML
123 Watson Business Center (95) MLML
124 Northridge Plaza CRF 247,260
125 Canton Corners Shopping Center (95) MLML
126 2823 Bristol CRF 65,000 7,500
127 John R. Wood Realty MLML
128 Telegraph Avenue Medical Office Building CRF 625
129 Beloit Mall CRF
130 Dublin Corners MLML
131 Super K-Mart Center (95) MLML
132 1638 Placentia Avenue CRF 4,375
133 Osco Drug Tucson - Sunrise CRF
134 Osco Drug Tucson - Broadway CRF
135 The Bluffs Of Burnsville (95) MLML
136 4120-4160 Kingsley Apartments CRF
137 861 South Catalina Street CRF 7,516
138 Storage Plus - Sandy CRF
139 Settlement Apartments (95) MLML
140 Cypresswood Center MLML 90,656 4,500
141 Walgreens Tomball CRF
142 Medical Specialties Center (95) MLML
143 Harbor Side Apartments (95) MLML
144 Starbucks - Verizon CRF
145 Sawtelle Place CRF
146 Regency Apartments MLML
147 Kennestone Professional Bldg. (95) MLML
148 Victorville Pavilion Shops CRF
149 Lakeside Apartments CRF 6,563
150 Edmonds Professional Center (95) MLML
151 Off Broadway Plaza CRF
152 Meadow View Mobile Home Park CRF 11,250
UPFRONT UPFRONT UPFRONT UPFRONT
TI/LC RE TAX INS. OTHER
LOAN # PROPERTY NAME ORIGINATOR RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ---------------------------------------------------------- ---------- ----------- ----------- ----------- -----------
80 Sherman Square MLML 23,536 5,631
81 Cambridge Quail CRF 90,000 7,919 150,000
82 Kahana Gateway Professional Center - Office MLML 110,000 11,234 5,707
83 Generations Medical Center CRF 20,778
84 17525 Ventura Blvd MLML 150,000
85 Junction Shoppes CRF 75,000 31,280
86 1963 Grand Concourse CRF 38,292 4,885
87 501 East Virginia Way CRF 12,390
88 San Leandro Medical Office CRF 7,001 956 135,000
89 Rainbow Diablo Medical Building CRF 200,000 7,895
90 Country Lakes Apartments CRF 5,884 4,764
91 McCar Homes CRF 14,601 4,245
92 Cheyenne Fountains CRF 125,000 803
93 135 West 27th Street Commercial Corp MLML 76,878 3,861
94 Times Square Retail Center CRF 10,686
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 500,000
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF 17,515 18,815 40,000
97 Endicott Apartments MLML 70,196
98 Mesa K-Mart (95) MLML
99 Hunters Point Apartments CRF 18,548 2,637
100 Santee Galleria CRF 12,538 9,414
101 Glendale Kmart (95) MLML
102 Clark Office Building CRF 110,000 26,449
103 Walgreen's - Chula Vista MLML 26,357
104 Hickory Hill Estates CRF 50,298 26,664
105 Keystone Center MLML 19,538 4,870
106 Casa Grande Gateway CRF
107 16812 Sherman Way CRF 21,106 6,250
108 Brookhurst Plaza MLML 4,845 320
109 Eastern Boulevard Plaza CRF 50,000 36,122 3,350
110 Norco Town & Country Business Center CRF 12,508 923
111 Westlake Professional Center CRF 100,000 5,863 1,133
112 1318-1332 Wilshire CRF 6,510
113 Crestview Apartments MLML 24,662 14,998 250
114 Redmond Ridge Marketplace MLML 50,000 1,769
115 Walgreens 24th & Florin CRF 50,000
116 Ashby Apartments CRF 12,143 550,000
117 Summit Marketplace CRF 386
118 Alii Sunset Plaza CRF 13,515
119 Rancho Plaza - Thousand Oaks CRF 100,000 14,802 1,282
120 Woodley Towers CRF 19,266 9,183
121 Sunnyside Town Center MLML 168,750 7,373 963
122 Walgreen's Fremont MLML 39,014
123 Watson Business Center (95) MLML 85,788
124 Northridge Plaza CRF 45,694 8,090 300,000
125 Canton Corners Shopping Center (95) MLML 10,252 10,259
126 2823 Bristol CRF 150,000 4,720 8,535
127 John R. Wood Realty MLML 2,231 9,685
128 Telegraph Avenue Medical Office Building CRF 100,000 18,500 1,063
129 Beloit Mall CRF 25,000 177
130 Dublin Corners MLML 386 192,745
131 Super K-Mart Center (95) MLML
132 1638 Placentia Avenue CRF 6,743 761
133 Osco Drug Tucson - Sunrise CRF
134 Osco Drug Tucson - Broadway CRF
135 The Bluffs Of Burnsville (95) MLML
136 4120-4160 Kingsley Apartments CRF 11,911 4,750
137 861 South Catalina Street CRF 5,824 5,755
138 Storage Plus - Sandy CRF
139 Settlement Apartments (95) MLML 54,800 28,673
140 Cypresswood Center MLML 6,760 400,000
141 Walgreens Tomball CRF
142 Medical Specialties Center (95) MLML 10,501 3,270
143 Harbor Side Apartments (95) MLML 32,274
144 Starbucks - Verizon CRF 17,500 401
145 Sawtelle Place CRF 3,341 467
146 Regency Apartments MLML 8,524 6,508
147 Kennestone Professional Bldg. (95) MLML 30,160 5,290
148 Victorville Pavilion Shops CRF 32,810 2,305
149 Lakeside Apartments CRF 2,743 1,600
150 Edmonds Professional Center (95) MLML 25,254 2,054
151 Off Broadway Plaza CRF 50,000 3,293 727
152 Meadow View Mobile Home Park CRF 27,222 621
MONTHLY MONTHLY MONTHLY
CAPEX CAPEX TI/LC
LOAN # PROPERTY NAME ORIGINATOR RESERVE ($) RESERVE CAP ($) RESERVE ($)
------ ---------------------------------------------------------- ---------- ----------- --------------- -----------
80 Sherman Square MLML 393 833
81 Cambridge Quail CRF 1,080
82 Kahana Gateway Professional Center - Office MLML 354 19,500
83 Generations Medical Center CRF 469
84 17525 Ventura Blvd MLML 803 29,000
85 Junction Shoppes CRF 4,222 2,455
86 1963 Grand Concourse CRF 350 3,938
87 501 East Virginia Way CRF 3,000
88 San Leandro Medical Office CRF 374 2,665
89 Rainbow Diablo Medical Building CRF 2,528
90 Country Lakes Apartments CRF 2,750
91 McCar Homes CRF 467
92 Cheyenne Fountains CRF 2,363
93 135 West 27th Street Commercial Corp MLML 1,350
94 Times Square Retail Center CRF
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 1,959 84,600
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF 3,453 4,111
97 Endicott Apartments MLML
98 Mesa K-Mart (95) MLML
99 Hunters Point Apartments CRF 2,427
100 Santee Galleria CRF
101 Glendale Kmart (95) MLML
102 Clark Office Building CRF 689 3,443
103 Walgreen's - Chula Vista MLML
104 Hickory Hill Estates CRF 2,500 60,000
105 Keystone Center MLML 787
106 Casa Grande Gateway CRF 210 2,500
107 16812 Sherman Way CRF 1,096
108 Brookhurst Plaza MLML 141 1,368
109 Eastern Boulevard Plaza CRF 516
110 Norco Town & Country Business Center CRF
111 Westlake Professional Center CRF 372 3,015
112 1318-1332 Wilshire CRF
113 Crestview Apartments MLML 3,938
114 Redmond Ridge Marketplace MLML
115 Walgreens 24th & Florin CRF
116 Ashby Apartments CRF 1,021
117 Summit Marketplace CRF 239 597
118 Alii Sunset Plaza CRF 381 950
119 Rancho Plaza - Thousand Oaks CRF 331 2,068
120 Woodley Towers CRF
121 Sunnyside Town Center MLML 524 1,987
122 Walgreen's Fremont MLML
123 Watson Business Center (95) MLML
124 Northridge Plaza CRF 2,000
125 Canton Corners Shopping Center (95) MLML
126 2823 Bristol CRF
127 John R. Wood Realty MLML 159
128 Telegraph Avenue Medical Office Building CRF 263
129 Beloit Mall CRF 267 1,333
130 Dublin Corners MLML 83 555
131 Super K-Mart Center (95) MLML
132 1638 Placentia Avenue CRF
133 Osco Drug Tucson - Sunrise CRF 169
134 Osco Drug Tucson - Broadway CRF 169
135 The Bluffs Of Burnsville (95) MLML
136 4120-4160 Kingsley Apartments CRF
137 861 South Catalina Street CRF
138 Storage Plus - Sandy CRF 759
139 Settlement Apartments (95) MLML
140 Cypresswood Center MLML 322 1,667
141 Walgreens Tomball CRF 166 553
142 Medical Specialties Center (95) MLML
143 Harbor Side Apartments (95) MLML
144 Starbucks - Verizon CRF 667 513
145 Sawtelle Place CRF
146 Regency Apartments MLML 1,815
147 Kennestone Professional Bldg. (95) MLML
148 Victorville Pavilion Shops CRF
149 Lakeside Apartments CRF 1,333
150 Edmonds Professional Center (95) MLML
151 Off Broadway Plaza CRF 237 833
152 Meadow View Mobile Home Park CRF 208
MONTHLY MONTHLY MONTHLY MONTHLY
TI/LC RE TAX INS. OTHER
RESERVE RESERVE RESERVE RESERVE GRACE
LOAN # PROPERTY NAME ORIGINATOR CAP ($) ($) ($) ($) PERIOD
------ ---------------------------------------------------------- ---------- ------- ------- ------- ------- ------
80 Sherman Square MLML 50,000 5,884 1,021 5
81 Cambridge Quail CRF 90,000 3,960 0
82 Kahana Gateway Professional Center - Office MLML 1,966 1,902 5
83 Generations Medical Center CRF 5,805 521 0
84 17525 Ventura Blvd MLML 3,818 5
85 Junction Shoppes CRF 104,000 7,820 695 0
86 1963 Grand Concourse CRF 225,000 6,382 2,443 0
87 501 East Virginia Way CRF 4,130 2,554 0
88 San Leandro Medical Office CRF 7,001 956 0
89 Rainbow Diablo Medical Building CRF 200,000 3,947 733 0
90 Country Lakes Apartments CRF 5,884 4,764 0
91 McCar Homes CRF 7,301 1,415 0
92 Cheyenne Fountains CRF 125,000 3,045 803 0
93 135 West 27th Street Commercial Corp MLML 25,626 1,931 5
94 Times Square Retail Center CRF 5,705 1,527 0
95 Palmdale Meadows and 12th Street Courtyard East Apartments CRF 5,110 1,770 0
95.01 Palmdale Meadows Apartments CRF
95.02 12th Street Courtyard East CRF
96 North Main Center - Rockford CRF 410,000 8,758 1,882 0
97 Endicott Apartments MLML 5
98 Mesa K-Mart (95) MLML 0
99 Hunters Point Apartments CRF 9,274 2,637 0
100 Santee Galleria CRF 6,269 941 0
101 Glendale Kmart (95) MLML 0
102 Clark Office Building CRF 123,933 5,417 3,778 0
103 Walgreen's - Chula Vista MLML 5
104 Hickory Hill Estates CRF 11,759 2,424 0
105 Keystone Center MLML 3,256 812 5
106 Casa Grande Gateway CRF 75,000 0
107 16812 Sherman Way CRF 5,277 1,042 0
108 Brookhurst Plaza MLML 45,000 2,407 160 5
109 Eastern Boulevard Plaza CRF 200,000 5,216 1,675 0
110 Norco Town & Country Business Center CRF 6,313 923 0
111 Westlake Professional Center CRF 225,000 2,931 618 0
112 1318-1332 Wilshire CRF 2,170 197 0
113 Crestview Apartments MLML 6,165 4,999 5
114 Redmond Ridge Marketplace MLML 884 842 5
115 Walgreens 24th & Florin CRF 0
116 Ashby Apartments CRF 2,024 1,021 0
117 Summit Marketplace CRF 21,509 3,099 192 0
118 Alii Sunset Plaza CRF 3,379 1,506 0
119 Rancho Plaza - Thousand Oaks CRF 74,450 4,934 641 0
120 Woodley Towers CRF 3,712 1,020 0
121 Sunnyside Town Center MLML 3,687 481 5
122 Walgreen's Fremont MLML 5
123 Watson Business Center (95) MLML 18,853 3
124 Northridge Plaza CRF 350,000 5,712 1,011 0
125 Canton Corners Shopping Center (95) MLML 4,026 545 10
126 2823 Bristol CRF 1,573 711 0
127 John R. Wood Realty MLML 744 1,937 3,166 5
128 Telegraph Avenue Medical Office Building CRF 4,118 532 0
129 Beloit Mall CRF 75,000 6,755 177 0
130 Dublin Corners MLML 19,980 4,472 386 5
131 Super K-Mart Center (95) MLML 0
132 1638 Placentia Avenue CRF 4,440 761 0
133 Osco Drug Tucson - Sunrise CRF 0
134 Osco Drug Tucson - Broadway CRF 0
135 The Bluffs Of Burnsville (95) MLML 0
136 4120-4160 Kingsley Apartments CRF 1,702 948 0
137 861 South Catalina Street CRF 2,912 1,151 0
138 Storage Plus - Sandy CRF 2,856 416 0
139 Settlement Apartments (95) MLML 10,976 2,606 0
140 Cypresswood Center MLML 40,000 3,380 525 5
141 Walgreens Tomball CRF 0
142 Medical Specialties Center (95) MLML 3,649 725 0
143 Harbor Side Apartments (95) MLML 13,873 0
144 Starbucks - Verizon CRF 1,250 401 0
145 Sawtelle Place CRF 1,670 233 0
146 Regency Apartments MLML 2,131 2,169 5
147 Kennestone Professional Bldg. (95) MLML 6,876 761 10
148 Victorville Pavilion Shops CRF 4,102 1,152 0
149 Lakeside Apartments CRF 2,743 1,180 0
150 Edmonds Professional Center (95) MLML 5,050 846 10
151 Off Broadway Plaza CRF 80,000 1,647 364 0
152 Meadow View Mobile Home Park CRF 2,269 311 0
SCHEDULE II
LIST OF MORTGAGE LOANS WITH SECURED CREDITOR ENVIRONMENTAL
INSURANCE POLICIES
[None.]
II-1
SCHEDULE III
[RESERVED.]
III-1
SCHEDULE IV
CLASS A-SB PLANNED PRINCIPAL BALANCE
IV-1
CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE
DATE PRINCIPAL BALANCE DATE PRINCIPAL BALANCE
-------------- ----------------- -------------- -----------------
3/30/2006 121,000,000.00 1/12/2011 121,000,000.00
4/12/2006 121,000,000.00 2/12/2011 121,000,000.00
5/12/2006 121,000,000.00 3/12/2011 120,903,489.72
6/12/2006 121,000,000.00 4/12/2011 119,263,153.59
7/12/2006 121,000,000.00 5/12/2011 117,423,271.18
8/12/2006 121,000,000.00 6/12/2011 115,765,529.75
9/12/2006 121,000,000.00 7/12/2011 113,908,693.66
10/12/2006 121,000,000.00 8/12/2011 112,233,372.50
11/12/2006 121,000,000.00 9/12/2011 110,549,655.74
12/12/2006 121,000,000.00 10/12/2011 108,667,517.33
1/12/2007 121,000,000.00 11/12/2011 106,965,960.26
2/12/2007 121,000,000.00 12/12/2011 93,234,012.06
3/12/2007 121,000,000.00 1/12/2012 91,527,076.71
4/12/2007 121,000,000.00 2/12/2012 89,811,585.42
5/12/2007 121,000,000.00 3/12/2012 87,714,169.08
6/12/2007 121,000,000.00 4/12/2012 85,981,054.08
7/12/2007 121,000,000.00 5/12/2012 84,103,516.34
8/12/2007 121,000,000.00 6/12/2012 82,402,760.59
9/12/2007 121,000,000.00 7/12/2012 80,508,043.37
10/12/2007 121,000,000.00 8/12/2012 78,789,476.74
11/12/2007 121,000,000.00 9/12/2012 76,894,759.52
12/12/2007 121,000,000.00 10/12/2012 75,000,042.30
1/12/2008 121,000,000.00 11/12/2012 73,281,475.67
2/12/2008 121,000,000.00 12/12/2012 71,562,909.04
3/12/2008 121,000,000.00 1/12/2013 69,844,342.41
4/12/2008 121,000,000.00 2/12/2013 68,125,775.78
5/12/2008 121,000,000.00 3/12/2013 66,152,841.19
6/12/2008 121,000,000.00 4/12/2013 64,365,749.69
7/12/2008 121,000,000.00 5/12/2013 62,387,684.74
8/12/2008 121,000,000.00 6/12/2013 60,581,928.38
9/12/2008 121,000,000.00 7/12/2013 58,585,681.10
10/12/2008 121,000,000.00 8/12/2013 56,761,074.89
11/12/2008 121,000,000.00 9/12/2013 54,927,411.09
12/12/2008 121,000,000.00 10/12/2013 52,903,976.82
1/12/2009 121,000,000.00 11/12/2013 51,051,186.39
2/12/2009 121,000,000.00 12/12/2013 49,009,119.60
3/12/2009 121,000,000.00 1/12/2014 47,137,497.51
4/12/2009 121,000,000.00 2/12/2014 45,282,269.33
5/12/2009 121,000,000.00 3/12/2014 42,880,275.06
6/12/2009 121,000,000.00 4/12/2014 41,004,074.41
7/12/2009 121,000,000.00 5/12/2014 38,940,054.70
8/12/2009 121,000,000.00 6/12/2014 37,044,410.29
9/12/2009 121,000,000.00 7/12/2014 34,961,448.68
10/12/2009 121,000,000.00 8/12/2014 33,046,168.97
11/12/2009 121,000,000.00 9/12/2014 31,121,427.71
12/12/2009 121,000,000.00 10/12/2014 29,010,119.22
1/12/2010 121,000,000.00 11/12/2014 27,065,455.87
2/12/2010 121,000,000.00 12/12/2014 24,934,739.11
3/12/2010 121,000,000.00 1/12/2015 20,456,470.00
4/12/2010 121,000,000.00 2/12/2015 18,486,190.38
5/12/2010 121,000,000.00 3/12/2015 15,980,895.00
6/12/2010 121,000,000.00 4/12/2015 13,988,556.22
7/12/2010 121,000,000.00 5/12/2015 11,811,960.61
8/12/2010 121,000,000.00 6/12/2015 9,799,040.04
9/12/2010 121,000,000.00 7/12/2015 7,602,392.85
10/12/2010 121,000,000.00 8/12/2015 --
11/12/2010 121,000,000.00 9/12/2015 --
12/12/2010 121,000,000.00
IV-2
SCHEDULE V
SUB-SERVICERS AS TO WHICH SUB-SERVICING AGREEMENTS ARE IN EFFECT
ON THE CLOSING DATE
1. GMAC Commercial Mortgage Corporation.
2. ARCS Commercial Mortgage Co., LP.
3. Columbia National Real Estate Finance, LLC.
V-1
SCHEDULE VI
LIST OF MORTGAGE LOANS REQUIRING
OPERATIONS AND MAINTENANCE PLANS
MORTGAGE LOAN SELLER LOAN NAME
-------------------- ---------
Countrywide Lakewood Apartments
Countrywide 25th Street Plaza
Countrywide Monroe Plaza
Countrywide Cloud Springs Plaza
Countrywide Kings Fairground Plaza
Countrywide Martintown Plaza
Countrywide New Smyrna Beach Shopping Center
Countrywide Mountainville Shopping Center
Countrywide Birney Mall
Countrywide Home Depot
Countrywide Dunmore Plaza
Countrywide Shillington Plaza
Countrywide Prince Georges Center II
Countrywide Osborn Medical Plaza
Countrywide Colonial Mall Glynn Place
Countrywide 2740 West 79th Street
Countrywide 1798 and 1800 Busse Highway
Countrywide Doubletree Club Hotel
Countrywide Storage I (CA)
Countrywide FNBA - Fountainhead Building
Countrywide Hilton Salt Lake City Airport
Countrywide Sunset View Apartments
Countrywide 60 East Lake
Countrywide Meridian Business Center
Countrywide Crenshaw Medical Arts Center
Countrywide Bond Hotel Master Leases
Countrywide Baggett Office & Shaw #2 Warehouse
Countrywide R & R Plaza
Countrywide 1963 Grand Concourse
Countrywide Moon Valley Plaza
Countrywide Rainbow Diablo Medical Building
Countrywide Country Lakes Apartments
Countrywide Santee Galleria
Countrywide 16812 Sherman Way
Countrywide Ashby Apartments
Countrywide Woodley Towers
Countrywide 2823 Bristol
MLML 135 West 27th Street Commercial Corp
MLML San Dimas Plaza
MLML The Crossing at Fry Road
MLML Brice Park
MLML Fashion Corner
MLML Bristol Plaza
MLML McKinley Plaza
MLML Green River Plaza
MLML Hunting Hills
MLML Wisteria Village
MLML Kmart Plaza
MLML Packard Plaza
MLML University Mall
MLML 60 State Street
MLML Radisson Indianapolis Downtown
MLML Hilton St. Peterburg
MLML Embassy Suites Palm Beach
MLML Hilton Nassau - Houston
MLML Crowne Plaza Beverly Hills
MLML Radisson Fort Worth
MLML 1350 Duane Avenue
MLML Airport Square
MLML La Crosse Industrial
MLML Village Faire Shopping Center
MLML University Collection Shopping Center
MLML Phoenix Industrial Portfolio
MLML 9602 West Buckeye Road
MLML Brookhollow Shopping Center
MLML Encino Valley Shopping Center
MLML GN Resound
MLML Cranberry Plaza
MLML 6221 Wilshire Boulevard
MLML Tidewater Estates
MLML Porterwood Shopping Center
MLML 10 Duff Road
MLML Parkway East Professional Center
MLML 400 Seco Road
MLML 119 North 4th Street
MLML The Bluffs Of Burnsville
MLML Settlement Apartments
MLML Harbor Side Apartments
MLML Regency Apartments
MLML Kennestone Professional Bldg.
MLML Kenwood Town Center
VI-1
SCHEDULE VII
LIST OF MERRILL TRUST MORTGAGE LOANS
WITH LATE PAYMENT CHARGES DUE PRIOR TO EXPIRATION
OF THEIR PAYMENT DATE GRACE PERIODS
[None.]
VII-1
EXHIBIT A-1
FORM OF CLASS A-1, A-2, A-3, A-3FL,
A-3B, A-SB, A-4 AND A-1A CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS [A-1] [A-2] [A-3] [A-3FL] [A-3B] [A-SB] [A-4] AND [A-1A]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2006-1
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 (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Rate: [___% per annum] [Variable]
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: April 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [A-1] [A-2] [A-3] [A-3FL] [A-3B] [A-SB] [A-4] [A-1A]
Initial Certificate Principal Balance of this Certificate as of the Closing
Date:
$____________
Class Principal Balance of all the Class [A-1] [A-2] [A-3] [A-3FL] [A-3B] [A-SB]
[A-4] [A-1A] Certificates as of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle 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 CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
[EXCEPT FOR CLASS A-3FL CERTIFICATES: SOLELY FOR U.S. FEDERAL INCOME TAX
PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE CODE.]
[FOR CLASS A-3FL CERTIFICATES ONLY: SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL OWNERSHIP INTEREST IN A GRANTOR
TRUST THE ASSETS OF WHICH CONSIST PRIMARILY OF AN INTEREST RATE SWAP AGREEMENT
AND A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.]
[FOR CLASS A-3FL CERTIFICATES ONLY: THE PASS-THROUGH RATE ON THIS CERTIFICATE IS
BASED UPON LIBOR AND THEREFORE IS SUBJECT TO CHANGE
A-1-2
OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN ADDITION, THE PASS-THROUGH
RATE ON THIS CLASS A-3FL CERTIFICATE MAY CONVERT TO A DIFFERENT PER ANNUM RATE
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Merrill
Lynch Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as special
servicer (the "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, the capitalized terms used herein have the
respective meanings assigned 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 the acceptance
hereof assents and by which such Holder is bound. In the event of 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, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may
A-1-3
be specified in such notice. Also notwithstanding the foregoing, any
distribution that may be made with respect to this Certificate in reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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.
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 Collection Account, the Distribution Account
and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
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.
[FOR CLASS A-3FL CERTIFICATES ONLY:] For so long as a Class A-3FL
Distribution Conversion has not occurred and become permanent, any Transferee of
this Certificate shall be deemed to have represented and warranted that either:
(i) such Transferee is not a Plan and is not 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; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is eligible for the
exemptive relief available under any of Prohibited Transaction Class Exemption
("PTCE") 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or a similar
exemption.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
A-1-4
[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.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by
the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) 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 approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class A-1, Class A-2, Class A-3, Class A-3FL, Class A-3B, Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, Class B, Class C
and Class D Certificates is reduced to zero, any single Holder of each
outstanding Class of Certificates (other than the Class Z, Class R-I and Class
R-II Certificates) may, subject to such other conditions as may be set forth in
the Agreement, exchange those Certificates for all Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining in the Trust Fund at the time of the
exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any
A-1-5
time by the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent with the consent of the Holders of Certificates entitled to at least
66-2/3% of the Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-3FL] [A-3B] [A-SB] [A-4]
[A-1A] Certificates referred to in the within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-1-7
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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class
to the above named assignee and delivery of such Commercial
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-1-8
EXHIBIT A-2
[RESERVED]
A-2-1
EXHIBIT A-3
FORM OF CLASS X CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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 (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: April 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. X -
Initial Certificate Notional Amount of this Certificate as of the Closing Date:
$____________
Original Class X Notional Amount of all the Class X Certificates as of the
Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle Bank National Association
CUSIP No.: ____________
ISIN No.: ____________
A-3-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
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 TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
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 DOES NOT ENTITLE THE HOLDER
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HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO
DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Merrill Lynch Mortgage Investors, Inc., as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Midland Loan
Services, Inc., as special servicer (the "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, the capitalized terms
used herein have the respective meanings assigned 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 the acceptance hereof assents and by which such Holder is bound. In
the event of 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, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
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
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provided in the Agreement, withdrawals from the Collection Account, the
Distribution Account and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
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 direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Merrill Lynch, Pierce, Fenner &
Smith Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such 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 or of the Depositor, the Master Servicer, the 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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit E-2A or Exhibit E-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
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If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Merrill
Lynch, Pierce, Fenner & Smith Incorporated 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 as Exhibit E-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein 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 E-2C attached to the Agreement are, with respect to the
subject Transfer, true and correct. No beneficial interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates may
be held by any Person that is not a Qualified Institutional Buyer.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee, as transfer agent for the
Depository, to approve the debit of the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and approve the
credit of 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 subject Class of Book-Entry Non-Registered
Certificates to be transferred. Upon delivery to the Certificate Registrar and
the Trustee of such certifications and such orders and instructions, the
Trustee, 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 subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Regulation S Global Certificate for such Class
of Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is a United States Securities Person. Any Certificate Owner desiring to effect
any Transfer of a beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be required to obtain
from such Certificate Owner's prospective Transferee a certificate substantially
in the form set forth in Exhibit E-2D to the Agreement to the effect that such
Transferee is not a United States Securities Person. If any Transferee of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates does not, in connection with the subject Transfer,
deliver to the Transferor the certification described in the preceding sentence,
then such Transferee shall be deemed to
A-3-5
have represented and warranted that all the certifications set forth in Exhibit
E-2D to the Agreement are, with respect to the subject Transfer, true and
correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third preceding paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate or Opinion of Counsel to be obtained by such Certificate Owner from
its prospective Transferee in accordance with the first sentence of the third
preceding paragraph and (C) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and Euroclear to
direct the Trustee 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 the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Trustee of such
certification(s) and/or Opinion of Counsel and such orders and instructions, the
Trustee, 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 the subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Rule 144A Global Certificate for such Class of
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a 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 Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fourth preceding paragraph and (ii) such written orders and instructions as are
required under the applicable procedures of the Depository to direct the Trustee
to debit the account of a Depository Participant by the denomination of the
transferred interests in such Global Certificate. Upon delivery to the
Certificate Registrar and the Trustee of the certifications and/or opinions
contemplated by the fourth preceding paragraph, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Global Certificate by the denomination of the
transferred interests in such Global Certificate, and shall 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 the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, 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 such 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, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
A-3-6
Countrywide Securities Corporation, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the Certificate Registrar and their respective
Affiliates 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.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh 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 or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) 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 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 Similar Law 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 Certificates or any Transfer of this Certificate or any
interest herein by the Depositor, Merrill Lynch, Pierce, Fenner & Smith
Incorporated or any of their respective Affiliates or, if this Certificate
constitutes a Global Certificate, any Transfer of this Certificate to a
successor Depository or to the applicable Certificate Owner in accordance with
Section 5.03 of the Agreement, the Certificate Registrar shall refuse to
register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein 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 or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) if this Certificate is rated in one of the four
highest generic rating categories by either of Fitch or S&P and this Certificate
or an interest herein is being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 90-29 or 2000-55, 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 Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Fiscal Agent, any
Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the 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 are Plans 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); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, 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 any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar (if this
Certificate constitutes a Definitive Certificate) or the Transferor (if this
Certificate constitutes a Global Certificate) a certification and/or
A-3-7
Opinion of Counsel as required by the 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 this
Certificate or any interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
[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.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by
the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) 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
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Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class A-1, Class A-2, Class A-3, Class A-3FL, Class A-3B, Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, Class B, Class C
and Class D Certificates is reduced to zero, any single Holder of each
outstanding Class of Certificates (other than the Class Z, Class R-I and Class
R-II Certificates) may, subject to such other conditions as may be set forth in
the Agreement, exchange those Certificates for all Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining in the Trust Fund at the time of the
exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-9
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, as
Authenticating Agent
By:
------------------------------------
Authorized Officer
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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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial 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.
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EXHIBIT A-4
FORM OF CLASS AM, AJ, B, C AND D CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS [AM] [AJ] [B] [C] [D] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-1
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 (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: April 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [AM] [AJ] [B] [C] [D] -___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date:
$____________
Class Principal Balance of all the Class [AM] [AJ] [B] [C] [D] Certificates as
of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle Bank National Association
CUSIP No.: _____________
ISIN No: _______________
A-4-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MERRILL
LYNCH MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-4-2
This certifies that [CEDE & CO.][_________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Merrill
Lynch Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as special
servicer (the "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, the capitalized terms used herein have the
respective meanings assigned 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 the acceptance
hereof assents and by which such Holder is bound. In the event of 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, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
A-4-3
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.
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 Collection Account, the Distribution Account
and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
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 registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
[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.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
A-4-4
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by
the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) 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 approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class A-1, Class A-2, Class A-3, Class A-3FL, Class A-3B, Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, Class B, Class C
and Class D Certificates is reduced to zero, any single Holder of each
outstanding Class of Certificates (other than the Class Z, Class R-I and Class
R-II Certificates) may, subject to such other conditions as may be set forth in
the Agreement, exchange those Certificates for all Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining in the Trust Fund at the time of the
exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
A-4-5
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [AM] [AJ] [B] [C] [D] Certificates referred
to in the within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------------
Authorized Officer
A-4-7
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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial 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-4-8
EXHIBIT A-5
FORM OF CLASS AN-FL, E, F, G AND H CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS [AN-FL] [E] [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-1
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 (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: April 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [AN-FL] [E] [F] [G] [H]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date:
$____________
Class Principal Balance of all the Class [AN-FL] [E] [F] [G] [H] Certificates as
of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle Bank National Association
CUSIP No.: _______
ISIN No.: ________
A-5-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
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 TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 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 MERRILL
LYNCH MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[EXCEPT FOR CLASS AN-FL CERTIFICATES: SOLELY FOR U.S. FEDERAL INCOME TAX
PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE
A-5-2
MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.]
[FOR CLASS AN-FL CERTIFICATES ONLY: SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS
CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL OWNERSHIP INTEREST IN A GRANTOR
TRUST THE ASSETS OF WHICH CONSIST PRIMARILY OF AN INTEREST RATE SWAP AGREEMENT
AND A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.]
[FOR CLASS AN-FL CERTIFICATES ONLY: THE PASS-THROUGH RATE ON THIS CERTIFICATE IS
BASED UPON LIBOR AND THEREFORE IS SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES
IN THE RATE OF LIBOR. IN ADDITION, THE PASS-THROUGH RATE ON THIS CLASS AN-FL
CERTIFICATE MAY CONVERT TO A DIFFERENT PER ANNUM RATE UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as special
servicer (the "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, the capitalized terms used herein have the
respective meanings assigned 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 the acceptance
hereof assents and by which such Holder is bound. In the event of 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, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
A-5-3
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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.
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 Collection Account, the Distribution Account
and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
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.
A-5-4
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such 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 or of the Depositor, the Master Servicer, the 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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit E-2A or Exhibit E-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 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 as Exhibit E-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein 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 E-2C attached to the Agreement are, with respect to the
subject Transfer, true and correct. No beneficial interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates may
be held by any Person that is not a Qualified Institutional Buyer.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
A-5-5
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee, as transfer agent for the
Depository, to approve the debit of the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and approve the
credit of 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 subject Class of Book-Entry Non-Registered
Certificates to be transferred. Upon delivery to the Certificate Registrar and
the Trustee of such certifications and such orders and instructions, the
Trustee, 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 subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Regulation S Global Certificate for such Class
of Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is a United States Securities Person. Any Certificate Owner desiring to effect
any Transfer of a beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be required to obtain
from such Certificate Owner's prospective Transferee a certificate substantially
in the form set forth in Exhibit E-2D to the Agreement to the effect that such
Transferee is not a United States Securities Person. If any Transferee of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates does not, in connection with the subject Transfer,
deliver to the Transferor 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 E-2D to the Agreement are, with respect
to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third preceding paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate or Opinion of Counsel to be obtained by such Certificate Owner from
its prospective Transferee in accordance with the first sentence of the third
preceding paragraph and (C) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and Euroclear to
direct the Trustee 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 the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Trustee of such
certification(s) and/or Opinion of Counsel and such orders and instructions, the
Trustee, subject to and
A-5-6
in accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Regulation S Global Certificate in respect of the subject
Class of Book-Entry Non-Registered Certificates, and increase the denomination
of the Rule 144A Global Certificate for such Class of Certificates, by the
denomination of the beneficial interest in such Class of Certificates specified
in such orders and instructions.
Also notwithstanding the foregoing, any interest in a 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 Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fourth preceding paragraph and (ii) such written orders and instructions as are
required under the applicable procedures of the Depository to direct the Trustee
to debit the account of a Depository Participant by the denomination of the
transferred interests in such Global Certificate. Upon delivery to the
Certificate Registrar and the Trustee of the certifications and/or opinions
contemplated by the fourth preceding paragraph, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Global Certificate by the denomination of the
transferred interests in such Global Certificate, and shall 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 the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, 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 such 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, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the Certificate Registrar and their respective
Affiliates 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.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) 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 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 Similar Law 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 Certificates or any Transfer of this Certificate or any
interest herein by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their respective Affiliates or, if this Certificate
constitutes a Global Certificate, any Transfer of this Certificate to a
successor Depository or to the applicable Certificate Owner in accordance with
Section 5.03 of the Agreement, the Certificate Registrar shall refuse to
A-5-7
register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein 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 or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) if this Certificate is rated in one of the four
highest generic rating categories by either of Fitch or S&P, and this
Certificate or an interest herein is being acquired by or on behalf of a Plan in
reliance on Prohibited Transaction Exemption 90-29 or 2000-55, 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 Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Fiscal
Agent, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with
respect to Mortgage Loans constituting more than 5% of the aggregate unamortized
principal balance of all the 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 are Plans 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); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, 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 any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar (if this
Certificate constitutes a Definitive Certificate) or the Transferor (if this
Certificate constitutes a Global Certificate) a certification and/or Opinion of
Counsel as required by the 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 this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406 and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Section 4975 of the Code.
[FOR CLASS AN-FL ONLY:] In addition to the certification required
pursuant to clause (iii) of the foregoing paragraph if this certificate if rated
in one of the four highest generic rating categories by either of Fitch or S&P
and this certificate or an interest herein is being acquired by or on behalf of
a Plan in reliance on Prohibited Transaction Exemption 90-29 or 2000-55, for so
long as a Class AN-FL Distribution Conversion has not occurred and become
permanent, the Certificate Registrar shall refuse to register the Transfer of
this Certificate unless it has received from the prospective Transferee, and, if
this Certificate constitutes a Global Certificate, any Certificate Owner
transferring an interest herein shall be required to obtain from its prospective
Transferee a certification to the effect that the purchase and holding of this
Certificate or such interest herein by such Plan is eligible for the exemptive
relief available under any of Prohibited Transaction Class Exemption ("PTCE")
00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or a similar exemption. If
any Transferee of this Certificate or any interest herein does
A-5-8
not, in connection with the subject Transfer, deliver to the Certificate
Registrar (if this Certificate constitutes a Definitive Certificate) or the
Transferor (if this Certificate constitutes a Global Certificate) a
certification as required by the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that the purchase and holding of
this Certificate or such interest herein by such Transferee is eligible for the
exemptive relief available under any of XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX
00-00, XXXX 96-23 or a similar exemption.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
[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.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by
the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) 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
A-5-9
Pool at the time of purchase being less than approximately 1.0% of the Initial
Pool Balance. In addition, following the date on which the total principal
balance of the Class A-1, Class A-2, Class A-3, Class A-3FL, Class A-3B, Class
A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, Class B, Class C
and Class D Certificates is reduced to zero, any single Holder of each
outstanding Class of Certificates (other than the Class Z, Class R-I and Class
R-II Certificates) may, subject to such other conditions as may be set forth in
the Agreement, exchange those Certificates for all Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining in the Trust Fund at the time of the
exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-5-10
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [AN-FL] [E] [F] [G] [H] Certificates referred
to in the within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-5-11
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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial 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 J, K, L, M, N, P AND Q CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS [J] [K] [L] [M] [N] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2006-1
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 (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: April 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [J] [K] [L] [M] [N] [P] [Q]-___
Initial Certificate Principal Balance of this Certificate as of the Closing
Date:
$____________
Class Principal Balance of all the Class [J] [K] [L] [M] [N] [P] [Q]
Certificates as of the Closing Date:
$____________
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle Bank National Association
CUSIP No.: ____________
ISIN No.:
A-6-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
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 TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 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 XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-6-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.][_________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as special
servicer (the "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, the capitalized terms used herein have the
respective meanings assigned 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 the acceptance
hereof assents and by which such Holder is bound. In the event of 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, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense
A-6-3
previously allocated to this Certificate, which reimbursement is to occur after
the date on which this Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the Holder
that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
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.
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 Collection Account, the Distribution Account
and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
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 direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or any of their respective Affiliates or, if this Certificate
is a Global Certificate, a Transfer of this Certificate to a successor
Depository or to the applicable Certificate Owner in accordance with Section
5.03 of the Agreement), then the Certificate Registrar shall refuse to register
such Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A to the Agreement or as Exhibit E-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without
A-6-4
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the 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. If any Transferee of this Certificate does not, in
connection with the subject Transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit E-2A or Exhibit E-2B attached to the
Agreement are, with respect to the subject Transfer, true and correct.
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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 as Exhibit E-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such Transferee is a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein 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 E-2C attached to the Agreement are, with respect to the
subject Transfer, true and correct. No beneficial interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates may
be held by any Person that is not a Qualified Institutional Buyer.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred to any Non-United States Securities Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate for such
Class of Certificates, provided that the Certificate Owner desiring to effect
such Transfer (i) complies with the requirements for Transfers of interests in
such Regulation S Global Certificate set forth in the following paragraph and
(ii) delivers or causes to be delivered to the Certificate Registrar and the
Trustee (A) a certificate from such Certificate Owner confirming its ownership
of the beneficial interests in the subject Class of Book-Entry Non-Registered
Certificates to be transferred, (B) a copy of the certificate to be obtained by
such Certificate Owner from its prospective Transferee in accordance with the
second sentence of the following paragraph and (C) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee, as transfer agent for the
Depository, to approve the debit of the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and approve the
credit of 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 subject Class of Book-Entry Non-Registered
Certificates to be transferred. Upon delivery to the Certificate Registrar and
the Trustee of such certifications and such orders and instructions, the
Trustee, 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 subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Regulation S Global Certificate for such Class
of
A-6-5
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
No beneficial interest in the Regulation S Global Certificate for any
Class of Book-Entry Non-Registered Certificates may be held by any Person that
is a United States Securities Person. Any Certificate Owner desiring to effect
any Transfer of a beneficial interest in the Regulation S Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be required to obtain
from such Certificate Owner's prospective Transferee a certificate substantially
in the form set forth in Exhibit E-2D to the Agreement to the effect that such
Transferee is not a United States Securities Person. If any Transferee of an
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates does not, in connection with the subject Transfer,
deliver to the Transferor 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 E-2D to the Agreement are, with respect
to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred to any Qualified Institutional Buyer that takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates, provided that the Certificate Owner
desiring to effect such transfer (i) complies with the requirements for
Transfers of interests in such Rule 144A Global Certificate set forth in the
third preceding paragraph and (ii) delivers or causes to be delivered to the
Certificate Registrar and the Trustee (A) a certificate from such Certificate
Owner confirming its ownership of the beneficial interests in the subject Class
of Book-Entry Non-Registered Certificates to be transferred, (B) a copy of the
certificate or Opinion of Counsel to be obtained by such Certificate Owner from
its prospective Transferee in accordance with the first sentence of the third
preceding paragraph and (C) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and Euroclear to
direct the Trustee 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 the subject Class of Book-Entry Non-Registered Certificates to be
transferred. Upon delivery to the Certificate Registrar and the Trustee of such
certification(s) and/or Opinion of Counsel and such orders and instructions, the
Trustee, 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 the subject Class of Book-Entry Non-Registered Certificates, and
increase the denomination of the Rule 144A Global Certificate for such Class of
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a 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 Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated by the
fourth preceding paragraph and (ii) such written orders and instructions as are
required under the applicable procedures of the Depository to direct the Trustee
to debit the account of a Depository Participant by the denomination of the
transferred interests in such Global Certificate. Upon delivery to the
Certificate Registrar and the Trustee of the certifications and/or opinions
contemplated by the fourth preceding paragraph, the Trustee, subject to and in
accordance with the applicable procedures
A-6-6
of the Depository, shall reduce the denomination of the subject Global
Certificate by the denomination of the transferred interests in such Global
Certificate, and shall 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 the Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, 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 such 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, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Countrywide Securities Corporation, the Trustee, any Fiscal Agent, the Master
Servicer, the Special Servicer, the Certificate Registrar and their respective
Affiliates 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.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code or any other federal, state, local
or foreign law ("Similar Law") that is substantially similar to Section 405 or
407 of ERISA or Section 4975 of the Code (each, a "Plan"), or (B) 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 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 Similar Law 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 Certificates or any Transfer of this
Certificate or any interest herein by the Depositor, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated or any of their respective Affiliates or, if this
Certificate constitutes a Global Certificate, any Transfer of this Certificate
to a successor Depository or to the applicable Certificate Owner in accordance
with Section 5.03 of the Agreement, the Certificate Registrar shall refuse to
register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein 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 or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406 and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) if this Certificate is rated in one of the four
highest generic rating categories by either of Fitch or S&P and this Certificate
or an interest herein is being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 90-29 or 2000-55, 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 Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any Fiscal
Agent, any Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate
A-6-7
unamortized principal balance of all the 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 are Plans 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); or (iv) a certification of facts and
an Opinion of Counsel which otherwise establish to the reasonable satisfaction
of the Trustee or such Certificate Owner, as the case may be, 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 any Transferee of this Certificate or any interest herein does not, in
connection with the subject Transfer, deliver to the Certificate Registrar (if
this Certificate constitutes a Definitive Certificate) or the Transferor (if
this Certificate constitutes a Global Certificate) a certification and/or
Opinion of Counsel as required by the 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 this
Certificate or any interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
[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.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance
A-6-8
with respect thereto) on or other liquidation of the last Mortgage Loan or REO
Property remaining in the Trust, (ii) the purchase by the Master Servicer, the
Special Servicer or the Plurality Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) remaining in the Trust and (iii) the exchange by
the holder of certain remaining outstanding Classes of Certificates (as
described below) for all the Mortgage Loans and REO Properties (or, if specified
in the Agreement with respect to any REO Property, the Trust's interests
therein) in the Trust. The Agreement permits, but does not require, the Master
Servicer, the Special Servicer or the Plurality Subordinate Certificateholder to
purchase from the Trust all Mortgage Loans and any REO Properties (or, if
specified in the Agreement with respect to any REO Property, the Trust's
interests therein) 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 approximately 1.0% of the Initial Pool Balance. In
addition, following the date on which the total principal balance of the Class
A-1, Class A-2, Class A-3, Class A-3FL, Class A-3B, Class A-SB, Class A-4, Class
A-1A, Class AM, Class AJ, Class AN-FL, Class B, Class C and Class D Certificates
is reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Z, Class R-I and Class R-II Certificates) may, subject to
such other conditions as may be set forth in the Agreement, exchange those
Certificates for all Mortgage Loans and REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-6-9
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J] [K] [L] [M] [N] [P] [Q] Certificates
referred to in the within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-6-10
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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial 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 R-I AND R-II CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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 (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: April 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. [R-I] [R-II]-___
Percentage Interest evidenced by this Certificate in the related Class: _____%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle Bank National Association
A-7-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT 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 TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE 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 ON THIS
CERTIFICATE.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership
A-7-2
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Midland Loan
Services, Inc., as special servicer (the "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, the capitalized terms
used herein have the respective meanings assigned 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 the acceptance hereof assents and by which such Holder is bound. In
the event of 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, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
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 Collection Account, the Distribution Account
and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
A-7-3
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 direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-2A to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such 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, the Master Servicer, the 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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, 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 such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Certificate Registrar and their respective Affiliates
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.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or
A-7-4
the Code or any other federal, state, local or foreign law that is substantially
similar to Section 405 or 407 of ERISA or Section 4975 of the Code (each, a
"Plan"), or (B) 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 a Plan. Except in connection with the initial
issuance of the Certificates or any Transfer of this Certificate by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates, the Certificate Registrar shall refuse to register the
Transfer of this Certificate unless it has received from the prospective
Transferee 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. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar a certification
as required by the preceding sentence, then such Transferee shall be deemed to
have represented and warranted that such Transferee is not a Plan and is not
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the 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 Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) 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. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the REMIC 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 G-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, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, 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 Tax
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 attached as
Exhibit G-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 Trustee and the REMIC
Administrator
A-7-5
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 such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
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
Trustee and the REMIC Administrator the following: (a) written notification from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause either REMIC I or REMIC II to
(A) cease to qualify as a REMIC or (B) be subject to an entity-level tax caused
by the Transfer of a Residual Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Certificate
to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause either REMIC I or REMIC II to fail to qualify as a REMIC,
(iii) a Disqualified Non-United States Tax Person, (iv) a Disqualified
Partnership or (v) 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.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Trustee
or the REMIC Administrator based upon an opinion of counsel that the holding of
an Ownership Interest in a Residual 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 Residual Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
A "Disqualified Non-United States Tax Person" is, with respect to any
Residual Certificate, any Non-United States Tax Person or agent thereof other
than: (1) a Non-United States Tax Person that (a) holds such Residual
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 Residual Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows generated by
such Residual Certificate and intends to pay taxes associated with holding such
Residual Certificate, and (c) has furnished the Transferor and the Trustee 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 and the
Certificate Registrar an opinion of nationally recognized tax counsel to the
effect that (x) the Transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated
A-7-6
thereunder and (y) such Transfer of such Residual Certificate will not be
disregarded for United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is 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 or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (or to the extent provided in the Treasury regulations, if the trust was
in existence on August 20, 1996 and elected to be treated as a United States
person), all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) on or other liquidation of the
last Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by
the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the
A-7-7
Plurality Subordinate Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties (or, if specified in the Agreement with respect to
any REO Property, the Trust's interests therein) 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 approximately 1.0% of the
Initial Pool Balance. In addition, following the date on which the total
principal balance of the Class A-1, Class A-2, Class A-3, Class A-3FL, Class
A-3B, Class A-SB, Class A-4, Class A-1A, Class AM, Class AJ, Class AN-FL, Class
B, Class C and Class D Certificates is reduced to zero, any single Holder of
each outstanding Class of Certificates (other than the Class Z, Class R-I and
Class R-II Certificates) may, subject to such other conditions as may be set
forth in the Agreement, exchange those Certificates for all Mortgage Loans and
REO Properties (or, if specified in the Agreement with respect to any REO
Property, the Trust's interests therein) remaining in the Trust Fund at the time
of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-7-8
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in the
within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-7-9
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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial 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 Z CERTIFICATES
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-1
CLASS Z COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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 (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of commercial, multifamily and manufactured housing community
mortgage loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Agreement: March 1, 2006
Closing Date: March 30, 2006
First Distribution Date: January 12, 2006
Master Servicer: Wachovia Bank, National Association
Special Servicer: Midland Loan Services, Inc.
Certificate No. Z-___
Percentage Interest evidenced by this Certificate in Class Z: ___%
Aggregate unpaid principal balance of the Mortgage Pool as of the Cut-off Date,
after deducting payments of principal due on or before such date (the "Initial
Pool Balance"): $2,141,833,152
Trustee: LaSalle Bank National Association
A-8-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY TO A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER SECURITIES
ACT 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 TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT 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) 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 ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., WACHOVIA BANK, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., LASALLE BANK NATIONAL ASSOCIATION OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
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 evidenced by
all the Class Z Certificates. The Trust was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Midland Loan
Services, Inc., as special servicer (the "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, the capitalized terms
used herein have the respective meanings assigned 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 the acceptance hereof assents and by which such Holder is bound. In
the event of 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.
A-8-2
Pursuant to the terms of the Agreement, distributions will be made on
the 12th day of any given month, or if the 12th day is not a Business Day, on
the next succeeding Business Day (each, a "Distribution Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs; provided
that the initial Record Date will be the Closing Date. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in 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 Trustee with written
wiring instructions no less than five (5) Business Days prior to (or, in the
case of the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
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 Collection Account, the Distribution Account
and, if established, the Pool REO Account 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.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are 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.
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 direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
A-8-3
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their respective
Affiliates), then the Certificate Registrar shall refuse to register such
Transfer unless it receives (and, upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
Transfer substantially in the form attached as Exhibit E-1 to the Agreement and
a certificate from such Certificateholder's prospective Transferee substantially
in the form attached as Exhibit E-2A to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such 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, the Master Servicer, the 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. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2A attached to the Agreement are, with respect to the subject
Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, 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 such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer, the Certificate Registrar and their respective Affiliates
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.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code or any other federal, state, local or foreign law
("Similar Law") that is substantially similar to Section 405 or 407 of ERISA or
Section 4975 of the Code (each, a "Plan"), or (B) 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 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 Similar Law 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 Certificates or any Transfer of this Certificate by the
Depositor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or any of their
respective Affiliates, the Certificate Registrar shall refuse to register the
Transfer of this Certificate unless it has received from the prospective
Transferee, one of the following: (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate or such interest herein 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
A-8-4
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 any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the 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 this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) the purchase and holding of this
Certificate or such interest herein by such Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Section 4975 of the
Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee 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
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agent of any of them may treat the Person in
whose name this Certificate is registered as of the related Record Date as the
owner hereof for the purpose of receiving distributions pursuant to the
Agreement and may treat the person in whose name this Certificate is registered
as of the relevant date of determination as owner of this Certificate for all
other purposes whatsoever, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, 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 and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties (or, if specified in the Agreement with
respect to any REO Property, the Trust's interests therein) remaining in the
Trust and (iii) the exchange by the holder of certain remaining outstanding
Classes of Certificates (as described below) for all the Mortgage Loans and REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) in the Trust. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Plurality Subordinate
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties (or, if specified in the Agreement with respect to any REO Property,
the Trust's interests therein) 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 approximately 1.0% of the Initial
Pool Balance. In addition,
A-8-5
following the date on which the total principal balance of the Class A-1, Class
A-2, Class A-3, Class A-3FL, Class A-3B, Class A-SB, Class A-4, Class A-1A,
Class AM, Class AJ, Class AN-FL, Class B, Class C and Class D Certificates is
reduced to zero, any single Holder of each outstanding Class of Certificates
(other than the Class Z, Class R-I and Class R-II Certificates) may, subject to
such other conditions as may be set forth in the Agreement, exchange those
Certificates for all Mortgage Loans and REO Properties (or, if specified in the
Agreement with respect to any REO Property, the Trust's interests therein)
remaining in the Trust Fund at the time of the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the Master
Servicer, the Special Servicer, the Trustee and any Fiscal Agent with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights. 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 circumstances, including any amendment necessary to maintain the status
of each of REMIC I and REMIC II 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 Authenticating Agent, 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 (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-8-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z Certificates referred to in the
within-mentioned Agreement.
Dated: March 30, 2006
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------------
Authorized Officer
A-8-7
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 evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial 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-8-8
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
B-1
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
ABN AMRO ACCT: __________________ Record Date: 03/31/2006
Administrator: REPORTING PACKAGE TABLE OF CONTENTS Analyst:
--------------------------------------------------------------------------------
---------------------------------
Issue Id: MLC0601
Monthly Data File Name:
---------------------------------
-------------------------------------------------------
Page(s)
-------
REMIC Certificate Report
Bond Interest Reconciliation
Cash Reconciliation Summary
15 Month Historical Loan Status Summary
15 Month Historical Payoff/Loss Summary
Historical Collateral Level Prepayment Report
Delinquent Loan Detail
Mortgage Loan Characteristics
Loan Level Detail
Specially Serviced Report
Modified Loan Detail
Realized Loss Detail
Appraisal Reduction Detail
-------------------------------------------------------
----------------------------------------
Closing Date:
First Payment Date: 04/12/2006
Assumed Final Payment Date:
----------------------------------------
--------------------------------------------------------------------------------
PARTIES TO THE TRANSACTION
--------------------------------------------------------------------------------
DEPOSITOR: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
UNDERWRITERS: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INC./COUNTRYWIDE
SECURITIES CORP./
EHY SECURITIES (USA), LLC/BANC OF AMERICA SECURITIES LLC/
XXXXXXX, SACHS & CO./XXXXXX XXXXXXX & CO.
MASTER SERVICER: WACHOVIA BANK, N.A.
SPECIAL SERVICER: MIDLAND LOAN SERVICES
RATING AGENCY: Dominion Bond Rating Services/Fitch, Inc./Standard & Poor's
--------------------------------------------------------------------------------
------------------------------------------------------------------
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Website
LaSalle Factor Line (000) 000-0000
------------------------------------------------------------------
--------------------------------------------------------------------------------
PAGE 1 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
ABN AMRO ACCT: __________________ Record Date: 03/31/2006
Administrator: Analyst:
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE (1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT (2) ADJUSTMENT RATE
CUSIP Next Rate(3)
------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------
-----------------
Total P&I Payment
-----------------
Notes: (1) N denotes notional balance not included in total (2) Accrued Interest
Plus/Minus Interest Adjustment Minus Deferred Interest equals Interest Payment
(3) Estimated. * Denotes Controlling Class
PAGE 2 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: _____________
Administrator: Analyst:
CASH RECONCILIATION SUMMARY
----------------------------------------
INTEREST SUMMARY
----------------------------------------
Current Scheduled Interest 0.00
Less Deferred Interest 0.00
Less PPIS Reducing Scheduled Int 0.00
Plus Gross Advance Interest 0.00
Less ASER Interest Adv Reduction 0.00
Less Other Interest Not Advanced 0.00
Less Other Adjustment 0.00
----------------------------------------
Total 0.00
----------------------------------------
UNSCHEDULED INTEREST:
----------------------------------------
Prepayment Penalties 0.00
Yield Maintenance Penalties 0.00
Other Interest Proceeds 0.00
----------------------------------------
Total 0.00
----------------------------------------
----------------------------------------
Less Fee Paid To Servicer 0.00
Less Fee Strips Paid by Servicer 0.00
----------------------------------------
LESS FEES & EXPENSES PAID BY/TO SERVICER
----------------------------------------
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Interest Due Serv on Advances 0.00
Non Recoverable Advances 0.00
Misc. Fees & Expenses 0.00
----------------------------------------
----------------------------------------
Total Unscheduled Fees & Expenses 0.00
----------------------------------------
----------------------------------------
Total Interest Due Trust 0.00
----------------------------------------
----------------------------------------
LESS FEES & EXPENSES PAID BY/TO TRUST
----------------------------------------
Trustee Fee 0.00
Fee Strips 0.00
Misc. Fees 0.00
Interest Reserve Withholding 0.00
Plus Interest Reserve Deposit 0.00
----------------------------------------
Total 0.00
----------------------------------------
----------------------------------------
PRINCIPAL SUMMARY
----------------------------------------
SCHEDULED PRINCIPAL:
Current Scheduled Principal 0.00
Advanced Scheduled Principal 0.00
----------------------------------------
Scheduled Principal 0.00
----------------------------------------
UNSCHEDULED PRINCIPAL:
Curtailments 0.00
Prepayments in Full 0.00
Liquidation Proceeds 0.00
Repurchase Proceeds 0.00
Other Principal Proceeds 0.00
----------------------------------------
Total Unscheduled Principal 0.00
----------------------------------------
Remittance Principal 0.00
----------------------------------------
----------------------------------------
Remittance P&I Due Trust 0.00
----------------------------------------
----------------------------------------
Remittance P&I Due Certs 0.00
----------------------------------------
----------------------------------------
POOL BALANCE SUMMARY
----------------------------------------
Balance Count
----------------------------------------
Beginning Pool 0.01 0
Scheduled Principal 0.00 0
Unscheduled Principal 0.00 0
Deferred Interest 0.00
Liquidations 0.00 0
Repurchases 0.00 0
----------------------------------------
Ending Pool 0.00 0
----------------------------------------
----------------------------------------
Servicing Advance Summary
----------------------------------------
Amount
----------------------------------------
Prior Outstanding
Plus Current Period
Less Recovered
Less Non Recovered
Ending Outstanding
----------------------------------------
----------------------------------------
SERVICING FEE SUMMARY
----------------------------------------
Current Servicing Fees 0.00
Plus Fees Advanced for PPIS 0.00
Less Reduction for PPIS 0.00
Plus Delinquent Servicing Fees 0.00
----------------------------------------
Total Servicing Fees 0.00
----------------------------------------
----------------------------------------
CAP LEASE ACCRETION
----------------------------------------
Accretion Amt 0.00
Distributable Interest 0.00
Distributable Principal 0.00
----------------------------------------
----------------------------------------
PPIS SUMMARY
----------------------------------------
Gross PPIS 0.00
Reduced by PPIE 0.00
Reduced by Shortfalls in Fees 0.00
Reduced by Other Amounts 0.00
----------------------------------------
PPIS Reducing Scheduled Interest 0.00
----------------------------------------
PPIS Reducing Servicing Fee 0.00
----------------------------------------
PPIS Due Certificate 0.00
----------------------------------------
------------------------------------------
ADVANCE SUMMARY (ADVANCE MADE BY SERVICER)
------------------------------------------
Principal Interest
------------------------------------------
Prior Outstanding 0.00 0.00
Plus Current Period 0.00 0.00
Less Recovered 0.00 0.00
Less Non Recovered 0.00 0.00
Ending Outstanding 0.00 0.00
------------------------------------------
PAGE 3 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
ABN AMRO ACCT: __________ Record Date: 03/31/2006
Administrator: BOND INTEREST RECONCILIATION DETAIL Analyst:
Prior Current Current Remaining
Pass Interest Interest Accrual Accrued Total Total Distributable Interest Period Outstanding
Opening Thru Due Due ----------- Certificate Interest Interest Certificate Payment Shortfall/ Interest
Class Balance Rate Date Date Method Days Interest Deductions Additions Interest Amount Recovery Shortfalls
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
PAGE 4 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
ABN AMRO ACCT: __________ Record Date: 03/31/2006
Administrator: BOND INTEREST RECONCILIATION DETAIL Analyst:
Deductions Additions
--------------------------------- ------------------------------------------------------------
Accrued Deferred & Prior Int Int Accrual Other
Opening Certificate Allocable Accretion Interest Shortfall on Prior Prepayment Yield Interest
Class Balance Interest PPIS Interest Loss / Exp Due Shortfall Premiums Maintenance Proceeds(1)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Distributable Interest Credit Support
Certificate Payment --------------------
Class Interest Amount Original Current(3)
----------------------------------------------------
----------------------------------------------------
-----------------------
(1) Other Interest Proceeds are additional interest amounts specifically
allocated to the bond(s) and used in determining the bonds Distributable
Interest.
(3) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance of
all classes which are not subordinate to the class divided by (A).
PAGE 5 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ___________
Administrator: Analyst:
INTEREST ADJUSTMENTS SUMMARY
SHORTFALL ALLOCATED TO THE BONDS:
-----------------------------------------------------
Net Prepayment Int. Shortfalls Allocated to the Bonds 0.00
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Legal Fees 0.00
Misc. Fees & Expenses Paid by/to Servicer 0.00
Interest Paid to Servicer on Outstanding Advances 0.00
ASER Interest Advance Reduction 0.00
Interest Not Advanced (Current Period) 0.00
Recoup of Prior Advances by Servicer 0.00
Servicing Fees Paid Servicer on Loans Not Advanced 0.00
Misc. Fees & Expenses Paid by Trust 0.00
Shortfall Due to Rate Modification 0.00
Other Interest Loss 0.00
----
Total Shortfall Allocated to the Bonds 0.00
====
EXCESS ALLOCATED TO THE BONDS:
-----------------------------------------------------
Other Interest Proceeds Due the Bonds 0.00
Prepayment Interest Excess Due the Bonds 0.00
Interest Income 0.00
Yield Maintenance Penalties Due the Bonds 0.00
Prepayment Penalties Due the Bonds 0.00
Recovered ASER Interest Due the Bonds 0.00
Recovered Interest Due the Bonds 0.00
ARD Excess Interest 0.00
----
Total Excess Allocated to the Bonds 0.00
====
AGGREGATE INTEREST ADJUSTMENT ALLOCATED TO THE BONDS
------------------------------------------------------------
Total Excess Allocated to the Bonds 0.00
Less Total Shortfall Allocated to the Bonds 0.00
----
Total Interest Adjustment to the Bonds 0.00
====
PAGE 6 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ___________
Administrator: Analyst:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL LOAN STATUS SUMMARY
Delinquency Aging Categories Special Event Categories (1)
----------------------------------------------------------------------- --------------------------------------------
Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO Modifications Specially Serviced Bankruptcy
Distribution -------------- --------------- ---------------- ----------- ----------- ------------- ------------------ -----------
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance
------------ --- ------- --- ------- --- ------- --- ------- --- ------- --- ------- --- ------- --- -------
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
0 0.00 0 0.00 0 0 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
PAGE 7 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ___________
Administrator: Analyst:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
Appraisal Realized
Ending Pool (1) Payoffs(2) Penalties Reduct. (2) Liquidations (2) Losses (2) Remaining Term Curr Weighted Avg.
Distribution --------------- ----------- ---------- ----------- ---------------- ---------- -------------- ------------------
Date # Balance # Balance # Amount # Balance # Balance # Amount Life Amount Coupon Remit
------------ --- ------- --- ------- --- ------ --- ------- --- ------- --- ------ ---- ------ ------ -----
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
0 0 0 0 0 0 0 0 0 0 0 0 0 0.00% 0.00%
0.00% 0.00% 0.00% 0.00%
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
PAGE 8 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: _____________
Administrator: Analyst:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PRINCIPAL BALANCES
Current Scheduled # of Scheduled % of Weighted Average
Balance Loans Balance Balance ------------------------
Term Coupon PFY DSCR
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------------
Average Schedule Balance 0
Maximum Schedule Balance (9,999,999,999)
Minimum Schedule Balance 9,999,999,999
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
Fully Amortizing # of Scheduled % of Weighted Average
Mortgage Loans Loans Balance Balance ------------------------
Term Coupon PFY DSCR
-------------------------------------------------------------------------
-------------------------------------------------------------------------
0 0 0.00%
-------------------------------------------------------------------------
DISTRIBUTION OF MORTGAGE INTEREST RATES
Current Mortgage # of Scheduled % of Weighted Average
Interest Rate Loans Balance Balance ------------------------
Term Coupon PFY DSCR
-------------------------------------------------------------------------
-------------------------------------------------------------------------
0 0 0.00%
-------------------------------------------------------------------------
Minimum Mortgage Interest Rate ,900.000%
Maximum Mortgage Interest Rate ,900.000%
DISTRIBUTION OF REMAINING TERM (BALLOON)
Balloon # of Scheduled % of Weighted Average
Mortgage Loans Loans Balance Balance ------------------------
Term Coupon PFY DSCR
-------------------------------------------------------------------------
-------------------------------------------------------------------------
0 0 0.00%
-------------------------------------------------------------------------
PAGE 9 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: _____________
Administrator: Analyst:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF DSCR (PFY)
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
DISTRIBUTION OF DSCR (CUTOFF)
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
GEOGRAPHIC DISTRIBUTION
Geographic # of Scheduled % of
Location Loans Balance Balance WAMM WAC PFY DSCR
----------------------------------------------------------------
----------------------------------------------------------------
0 0 0.00%
----------------------------------------------------------------
PAGE 10 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ___________
Administrator: Analyst:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PROPERTY TYPES
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC PFY DSCR
----------------------------------------------------------------------
----------------------------------------------------------------------
0 0 0.00%
----------------------------------------------------------------------
DISTRIBUTION OF AMORTIZATION TYPE
# of Scheduled % of
Amortization Type Loans Balance Balance WAMM WAC PFY DSCR
-------------------------------------------------------------------------
-------------------------------------------------------------------------
0 0 0.00%
-------------------------------------------------------------------------
DISTRIBUTION OF LOAN SEASONING
# of Scheduled % of
Number of Months Loans Balance Balance WAMM WAC PFY DSCR
------------------------------------------------------------------------
------------------------------------------------------------------------
0 0 0.00%
------------------------------------------------------------------------
DISTRIBUTION OF YEAR LOANS MATURING
# of Scheduled % of
Year Loans Balance Balance WAMM WAC PFY DSCR
---------------------------------------------------------------------
2006 0 0 0.00% 0 0.00% 0.00
2007 0 0 0.00% 0 0.00% 0.00
2008 0 0 0.00% 0 0.00% 0.00
2009 0 0 0.00% 0 0.00% 0.00
2010 0 0 0.00% 0 0.00% 0.00
2011 0 0 0.00% 0 0.00% 0.00
2012 0 0 0.00% 0 0.00% 0.00
2013 0 0 0.00% 0 0.00% 0.00
2014 0 0 0.00% 0 0.00% 0.00
2015 0 0 0.00% 0 0.00% 0.00
2016 0 0 0.00% 0 0.00% 0.00
2017 & Greater 0 0 0.00% 0 0.00% 0.00
---------------------------------------------------------------------
0 0 0.00%
---------------------------------------------------------------------
PAGE 11 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ___________
Administrator: Analyst:
DELINQUENT LOAN DETAIL
Paid Outstanding Out. Property Special
Disclosure Thru Current P&I P&I Protection Loan Status Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Code (1) Transfer Date Date Date Date
-----------------------------------------------------------------------------------------------------------------------------
TOTAL
-----------------------------------------------------------------------------------------------------------------------------
A. IN GRACE PERIOD 1. DELINQ. 1 MONTH 3. DELINQUENT 3 + MONTHS 5. NON PERFORMING MATURED BALLOON 9. REO
B. LATE PAYMENT BUT < 1 MONTH DELINQ. 2. DELINQ. 2 MONTHS 4. PERFORMING MATURED BALLOON 7. FORECLOSURE
** Outstanding P&I Advances include the current period P&I Advances and may
include Servicer and Trust Advances.
PAGE 12 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ___________
Administrator: Analyst:
LOAN LEVEL DETAIL
Operating Ending Loan
Disclosure Property Maturity PFY Statement Geo. Principal Note Scheduled Prepayment Prepayment Status
Control # Group Type Date DSCR Date Location Balance Rate P&I Amount Date Code (1)
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
* NOI and
------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. In Grace Period 1. Delinquent 1 month 3. Delinquent 3+ months 5. Non Performing Matured Ballon 9. REO
B. Late Payment but < 1 2. Delinquent 2 months 4. Performing Matured Balloon 7. Foreclosure
month delinq
PAGE 13 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
Realized Loss Detail
Beginning Gross Proceeds Aggregate Net Net Proceeds
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Period Control # Date Value Balance Proceeds Sched. Balance Expenses * Proceeds Sched. Balance Loss
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
Cumulative
---------------------------------------------------------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc..
PAGE 14 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
BOND/COLLATERAL REALIZED LOSS RECONCILIATION
Interest
Prior (Shortages)
Beginning Realized /Excesses
Balance Aggregate Loss Amounts Covered by applied
of the Realized Applied to Overcollateralization to Realized
Prospectus Loan at Loss Certificates and other Credit Losses
ID Period Liquidation on Loans A B C
--------------------------------------------------------------------------------------------
CUMULATIVE
Additional
Modification (Recoveries)/ (Recoveries)/
Adjustments/ Expenses Current Realized
Appraisal applied to Realized Loss
Reduction Realized Loss Recoveries of Applied to
Prospectus Adjustment Losses Applied to Realized Losses Certificate
ID D E Certififcates* paid as Cash Interest
---------------------------------------------------------------------------------------
CUMULATIVE
* In the Initial Period the Current Realized Loss Applied to Certificates will
equal Aggregate Realized Loss on Loans - B - C - D + E instead of A - B - C - D
+ E
Description
of Fields
-----------
A Prior Realized Loss Applied to Certificates
B Reduction to Realized Loss applied to bonds (could represent OC, insurance policies, reserve accounts, etc)
C Amounts classified by the Master as interest adjustments from general collections on a loan with a Realized Loss
D Adjustments that are based on principal haircut or future interest foregone due to modification
E Realized Loss Adjustments, Supplemental Recoveries or Expenses on a previously liquidated loan
PAGE 15 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
APPRAISAL REDUCTION DETAIL
Remaining Term Appraisal
Disclosure Appraisal Scheduled ARA Current P&I ASER Note Maturity -------------- Property Geographic -----------
Control# Red. Date Balance Amount Advance Rate Date Life Type Location DSCR Value Date
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
PAGE 16 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
MATERIAL BREACHES DETAIL
Ending Material
Disclosure Principal Breach Material Breach
Control # Balance Date Description
--------------------------------------------------
--------------------------------------------------
PAGE 17 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Current
Cumulative
PAGE 18 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ____________
Administrator: Analyst:
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL (END OF PERIOD)
Loan Balance Remaining
Disclosure Servicing Status ----------------- Note Maturity --------- Property Geo. NOI
Control # Xfer Date Code(1) Schedule Actual Rate Date Life Type Location NOI DSCR Date
--------------------------------------------------------------------------------------------------------------------------------
Not Not Not
Avail Avail Avail
--------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. P&I Adv - in Grace 1. P&I Adv - delinquent 1 3. P&I Adv - delinquent 3+ 5. Non Performing Mat. 9. REO
Period month months Balloon
B. P&I Adv - < one 2. P&I Adv - delinquent 2 4. Mat. Balloon/Assumed P&I 7. Foreclosure
month delinq months
PAGE 19 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ____________
Administrator: Analyst:
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS (END OF PERIOD)
Disclosure Resolution
Control # Strategy Comments
----------------------------------
PAGE 20 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO ACCT: ____________
Administrator: Analyst:
MATURITY EXTENSION SUMMARY
LOANS WHICH HAVE HAD THEIR MATURITY DATES EXTENDED
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
LOANS IN THE PROCESS OF HAVING THEIR MATURITY DATES EXTENDED
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
LOANS IN THE PROCESS OF HAVING THEIR MATURITY DATES FURTHER EXTENDED
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
LOANS PAID-OFF THAT DID EXPERIENCE MATURITY DATE EXTENSIONS
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
LOANS PAID-OFF THAT DID NOT EXPERIENCE MATURITY DATE EXTENSIONS
Number of Loans: 0
Cutoff Principal Balance: 0.00
PAGE 21 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
RATING INFORMATION
ORIGINAL RATINGS RATING CHANGE/CHANGE DATE(1)
------------------- ----------------------------
CLASS CUSIP DBRS FITCHS S&P DBRS FITCH S&P
------------------------------------------------------------------
------------------------------------------------------------------
NR - Designates that the class was not rated by the rating agency.
(1) Changed ratings provided on this report are based on information provided by
the applicable rating agency via electronic transmission. It shall be understood
that this transmission will generally have been provided to LaSalle within 30
days of the payment date listed on this statement. Because ratings may have
changed during the 30 day window, or may not be being provided by the rating
agency in an electronic format and therefore not being updated on this report,
LaSalle recommends that investors obtain current rating information directly
from the rating agency.
PAGE 22 OF 23
ABN AMRO XXXXXXX XXXXX MORTGAGE INVESTORS, INC. Statement Date: 04/12/2006
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 04/12/2006
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2006-1 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 05/12/2006
Record Date: 03/31/2006
ABN AMRO Acct: _____________
Administrator: Analyst:
LEGEND
Until this statement/report is filed with the Commission with respect to the
Trust pursuant to Section 15(d) of the Securities Exchange Act of 1934, as
amended, the recipient hereof shall be deemed to keep the information contained
herein confidential and such information will not, without the prior consent of
the Master Servicer or the Trustee, be disclosed by such recipient or by its
officers, directors, partners, employees, agents or representatives in any
manner whatsoever, in whole or in part.
PAGE 23 OF 23
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
[Date]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Countrywide Commercial Real Estate Finance, Inc.
0000 Xxxx Xxxxxxx XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000
Eurohypo AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Midland Loan Services, Inc.
10851 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Re: ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1
Ladies and Gentlemen:
LaSalle Bank National Association, as Trustee, hereby certifies to the
above referenced parties that, with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (i), (ii), (iv)(A), (v)
and (vii) of the definition of "Mortgage File", and to the extent provided in
the related Mortgage File and actually known by a Responsible Officer of the
Trustee or the Custodian to be required or to the extent listed on the Mortgage
Loan checklist, if any, provided by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase Agreement, clauses (iii), (iv)(B), (iv)(C),
(vi) and (viii) through (xii) of the definition of "Mortgage File", are in its
possession, (ii) all documents delivered or caused to be delivered with respect
to a Mortgage
C-1
Loan by the applicable Mortgage Loan Seller constituting the related Mortgage
File have been reviewed by it and appear regular on their face, appear to be
executed and appear to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule for such Mortgage Loan with respect to the items
specified in clauses (v) and (vi)(c) of the definition of "Mortgage Loan
Schedule" is correct.
None of the Trustee, the Master Servicer, the Special Servicer or any
Custodian is under any duty or obligation to inspect, review or examine any of
the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face. Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them under the Pooling and Servicing
Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-0
XXXXXXX X-0
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of March 1,
2006 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as Special Servicer, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn: __________________________________
Phone: _________________________________
D-1-1
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full.
The Master Servicer 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)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
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 (10) 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.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Master Servicer
By:
------------------------------------
Name
-----------------------------------
Title:
---------------------------------
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of March
1, 2006 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as Special Servicer, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn: _____________________________
Phone: ____________________________
D-2-1
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. 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 (10) days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.
as Special Servicer
By:
------------------------------------
Name
-----------------------------------
Title:
---------------------------------
D-2-2
EXHIBIT E-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Class _____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of March 30, 2006 (the "Closing Date") of
$____________________ ] [representing a _________% Percentage Interest
in the subject Class]
Ladies and Gentlemen:
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 March
1, 2006, between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia
Bank, National Association, as Master Servicer, Midland Loan Services, Inc., as
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 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
E-1-1
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"), 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:
---------------------------------
E-1-2
EXHIBIT E-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Class _______, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of March 30, 2006 (the "Closing Date") of
$___________________________ ] [representing a _______% Percentage
Interest in the subject Class]
Ladies and Gentlemen:
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 March 1, 2006, between Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as 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 Transferee 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 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.
E-2A-1
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:
---------------------------------
E-2A-2
ANNEX 1 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to _________________ (the
"Transferor") and ______________________________, 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").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
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 such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the state
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the 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
----------
(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.
E-2A-3
similar institution, which is supervised and examined by a state
or federal authority having supervision over any such
institutions, or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the 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.
_____ 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.
E-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.
E-2A-5
________________________________________
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
E-2A-6
ANNEX 2 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to _______________________
(the "Transferor") and __________________________, 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 ("Rule 144A") under the Securities Act of 1933, as amended, 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).
E-2A-7
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.
________________________________________
[Transferee][Adviser]
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
E-2A-8
IF AN ADVISER:
________________________________________
(Transferee)
Date:
_______________________________
E-2A-9
EXHIBIT E-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_______________________, 200___
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Class _______, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of March 30, 2006 (the "Closing Date") of
$_______________________ ]
Ladies and Gentlemen:
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 March 1, 2006, between
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, Midland Loan Services, Inc., as 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 Transferee 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 acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the 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 or the Certificate Registrar is obligated so to register or qualify
the Class of Certificates to which the Transferred Certificates belong, and (c)
neither a Transferred Certificate 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 transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit E-1 to the
Pooling and Servicing
E-2B-1
Agreement and a certification from such Certificateholder's prospective
transferee substantially in the form attached either as Exhibit E-2A to the
Pooling and Servicing Agreement or as Exhibit E-2B to the Pooling and Servicing
Agreement; or (B) an opinion of counsel satisfactory to the Trustee with respect
to, among other things, the availability of such exemption from registration
under the Securities Act, together with copies of the written certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any Transferred Certificate or interest therein, 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 LAWS
OF ANY STATE. 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 TO
(A) 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) 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.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Transferred Certificate,
any interest in any Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Transferred Certificate, any interest in
any 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 any 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 any 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 any Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution
E-2B-2
of the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized or will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to any Transferred
Certificate, any interest in any Transferred Certificate 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) 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 an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred 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
investment and can afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgement below.
Very truly yours,
________________________________________
(Transferee)
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
E-2B-3
Nominee Acknowledgement
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:
-----------------------------
E-2B-4
EXHIBIT E-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
_______________________, 200___
____________________________________
____________________________________
____________________________________
____________________________________
(Name and Address of Transferor)
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Class _______, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of March 30, 2006 (the "Closing Date") of
$_________________________
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 March 1, 2006, between Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor, Wachovia Bank, National Association, as Master
Servicer, Midland Loan Services, Inc., as 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:
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 another 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 or the Certificate Registrar is obligated so to register or qualify
the Transferred Certificates and (c) no interest in the
E-2C-1
Transferred Certificates may be resold or transferred unless (i) such
Certificates are registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws, or (ii) such interest
is sold or transferred in a transaction which is exempt from such registration
and qualification and the Transferor desiring to effect such transfer has
received (A) a certificate from such Certificate Owner's prospective transferee
substantially in the form attached as Exhibit E-2C to the Pooling and Servicing
Agreement or (B) an opinion of counsel to the effect that, among other things,
such prospective 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
the Transferred Certificates or any interest therein 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 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
LAWS OF ANY STATE. 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 TO
(A) 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) 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.
4. 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, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
E-2C-2
Very truly yours,
________________________________________
(Transferee)
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
E-2C-3
ANNEX 1 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to _______________________
(the "Transferor") and for the benefit of Xxxxxxx Xxxxx Mortgage Investors, 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 such entity's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the 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
----------
(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.
E-2C-4
similar institution, which is supervised and examined by a state or
federal authority having supervision over any such institutions or
is a foreign savings and loan association or equivalent institution
and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the 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.
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
E-2C-5
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 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
_____ _____ Transferred Certificates only for the Transferee's own
Yes No 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.
E-2C-6
________________________________________
(Transferee)
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
E-2C-7
ANNEX 2 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to _______________________
(the "Transferor") and for the benefit of Xxxxxxx Xxxxx Mortgage Investors, 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 acquired interests 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).
E-2C-8
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
Transfers to the Transferee will be in reliance on Rule 144A.
Will the Transferee be acquiring interests in the
_____ _____ Transferred Certificates only for the Transferee's own
Yes No 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.
E-2C-9
________________________________________
(Transferee or Adviser)
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
IF AN ADVISER:
Print Name of Transferee
________________________________________
Date:
----------------------------------
E-2C-10
EXHIBIT E-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, Class _______, having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of March
30, 2006 (the "Closing Date") of $_________________________
Ladies and Gentlemen:
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 March 1, 2006, between Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Midland Loan Services, Inc., as 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 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, 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
E-2D-1
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 any individual) resident
in the United States, (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 Securities Act, unless it is organized or
incorporated, and owned, by "accredited investors" (as defined in Rule 501(a))
under the United States Securities Act of 1933, as amended (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.
The Transferee understands 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: __________, _____
Very truly yours,
(Transferee)
By:
------------------------------------
Name:
Title:
E-2D-2
EXHIBIT F-1
FORM I OF TRANSFEREE CERTIFICATE REGARDING ERISA MATTERS
(DEFINITIVE NON-REGISTERED CERTIFICATES)
___________________, 200__
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________ (the "Transferor") to _________________ (the "Transferee") of the
Class _____ Certificates (the "Transferred Certificates") [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional Amount] as of
March 30, 2006 (the "Closing Date") of $_________ ] [evidencing a ____% interest
in the Classes to which they belong]. The Certificates were issued pursuant to a
Pooling and Servicing Agreement, dated as of March 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, Wachovia Bank, National Association, as master servicer, Midland Loan
Services, Inc., as special servicer, and LaSalle Bank National Association, as
trustee (the "Trustee"). Capitalized terms used but not defined herein shall
have the 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 (A) is not 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, without limitation, an insurance company
general account, that is subject to ERISA or the Code (each, a
"Plan"), and (B) is not directly or indirectly purchasing the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or
_____ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Sections 406 and 407
of ERISA and the excise taxes imposed on such prohibited
transactions by Section 4975 of the
F-1-1
Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60.
_____ The Transferred Certificates are Investment Grade Certificates and
are being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 90-29 or 2000-55; 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, the Master Servicer, the
Special Servicer, any Fiscal Agent, any Sub-Servicer, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized
principal balance of all the Mortgage Loans determined on the date
of the initial issuance of the Certificates, or by any Affiliate of
such Person, and (Z) such Plan agrees that it will obtain from each
of its Transferees that are Plans a written representation that
such Transferee 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).
[FOR CLASS AN-FL ONLY SO LONG AS A CLASS AN-FL DISTRIBUTION
CONVERSION HAS NOT BECOME PERMANENT:] The Transferred Certificates
are Investment Grade Certificates and (X) the purchase and holding
of the Transferred Certificates by the Plan is eligible for the
exemptive relief available under ___________________ (identify
applicable Prohibited Transaction Class Exemption: XXXX 00-00, XXXX
00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a similar exemption).
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
F-1-2
________________________________________
(Transferee)
By:
------------------------------------
Name
-----------------------------------
Title:
---------------------------------
F-1-3
EXHIBIT F-2
FORM II OF TRANSFEREE CERTIFICATE REGARDING ERISA MATTERS
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
___________________, 200__
_____________________________________
_____________________________________
_____________________________________
_____________________________________
(Name and Address of Transferor)
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1 (the "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 Class _____ Certificates
(the "Transferred Certificates") [having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] as of March 30, 2006 (the
"Closing Date") of $ _____ ]. The Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as of March 1, 2006 (the "Pooling and Servicing
Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Wachovia Bank, National Association, as master servicer, Midland Loan Services,
Inc., as special servicer, and LaSalle Bank National Association, as trustee
(the "Trustee"). Capitalized terms used but not defined herein shall have the
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 (A) is not 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, without limitation, an insurance company
general account, that is subject to ERISA or the Code (each, a
"Plan"), and (B) is not directly or indirectly purchasing the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or
_____ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Sections 406 and 407
of ERISA and the excise
F-2-1
taxes imposed on such prohibited transactions by Section 4975 of
the Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60.
_____ The Transferred Certificates are Investment Grade Certificates and
are being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 90-29 or 2000-55; 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, the Master Servicer, the
Special Servicer, any Fiscal Agent, any Sub-Servicer, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized
principal balance of all the Mortgage Loans determined on the date
of the initial issuance of the Certificates, or by any Affiliate of
such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such
Transferee 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).
[FOR CLASS AN-FL ONLY SO LONG AS A CLASS AN-FL DISTRIBUTION
CONVERSION HAS NOT BECOME PERMANENT:] The Transferred Certificates
are Investment Grade Certificates and (X) the purchase and holding
of the Transferred Certificates by the Plan is eligible for the
exemptive relief available under ___________________ (identify
applicable Prohibited Transaction Class Exemption: XXXX 00-00, XXXX
00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a similar exemption).
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
F-2-2
________________________________________
(Transferee)
By:
------------------------------------
Name
-----------------------------------
Title:
---------------------------------
F-2-3
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO SECTIONS
860D(A)(6)(A) AND 860E(E)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND
TREASURY REGULATION SECTION 1.860E-1(C)(4)
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1 (the "Certificates"), issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of March 1, 2006, between Xxxxxxx Xxxxx Mortgage Investors, Inc.,
as Depositor, Wachovia Bank, National Association, as Master Servicer,
Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee
STATE OF ___________________________)
) ss.: ___________________________________
COUNTY OF __________________________)
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1. ______________________________________________ (the "Purchaser"), is
acquiring Class [R-I] [R-II] Certificates representing ________________% of the
residual interest in [each of] the real estate mortgage investment conduit[s]
([each,] a "REMIC") designated as ["REMIC I"] ["REMIC II"], [respectively],
relating to the Certificates for which an election is to be made under Section
860D of the Internal Revenue Code of 1986, as amended (the "Code").
2. The Purchaser is not a "Disqualified Organization" (as
defined below), and the Purchaser is not acquiring the Class [R-I] [R-II]
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
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 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
G-1-1
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.
3. 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-I] [R-II] Certificates to a Disqualified
Organization.
4. The Purchaser will not transfer the Class [R-I] [R-II]
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 2 and 7 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).
5. 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-I] [R-II] Certificates to a Disqualified
Organization, an agent thereof or a person that does not satisfy the
requirements of paragraph 7.
6. The Purchaser consents to the designation of the Trustee
as the agent of the Tax Matters Person of [REMIC I] [REMIC II] pursuant to
Section 10.01(d) of the Pooling and Servicing Agreement.
7. No purpose of the acquisition of the Class [R-I] [R-II]
Certificates is to impede the assessment or collection of tax.
[CHOOSE BETWEEN PARAGRAPHS 8 OR 9 BELOW]
8. If the Transferor requires the safe harbor under Treasury
regulations section 1.860E-1 to apply:
i. 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-I]
[R-II] Certificates as they become due.
ii. The Purchaser understands that it may incur tax liabilities with
respect to the Class [R-I] [R-II] Certificates in excess of any cash
flows generated by such Certificates.
iii. 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.
G-1-2
iv. The Purchaser will not cause the income from the Class [R-I] [R-II]
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.
[CHECK THE STATEMENT THAT APPLIES]
[_] v) In accordance with Treasury Regulations Section 1.860E-1, the
Purchaser:
a) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations (i.e., a domestic C
corporation other than a corporation which is exempt from, or is not
subject to, tax under Section 11 of the Code; a Regulated Investment
Company as defined in Section 851(a) of the Code; a Real Estate
Investment Trust as defined in Section 856(a) of the Code; a REMIC as
defined in Section 860D of the Code; or an organization to which part
I of subchapter T of chapter 1 of subtitle A of the Code applies, as
to which the income of Class [R-I] [R-II] Certificates will only be
subject to taxation in the United States,
b) 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
c) hereby agrees only to transfer the Certificate to another "eligible
corporation" meeting the criteria set forth in Treasury regulations
section 1.860E-1.
OR
[_] vi) The Purchaser is a United States Tax Person and the consideration paid
to the Purchaser for accepting the Class [R-I] [R-II] Certificates is
greater than the present value of the 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
G-1-3
[_] 9. If the Transferor does not require the safe harbor under Treasury
regulations section 1.860E-1 to apply: [CHECK THE STATEMENT THAT
APPLIES]
[_] i) 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).
OR
[_] ii) The Purchaser is not a United States person. However, the Purchaser:
a) conducts a trade or business within the United States and, for
purposes of Treasury regulations section 1.860G-3(a)(3), is subject to
tax under Section 882 of the Code;
b) understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of a Class [R-I] [R-II] Certificate
for United States federal income tax purposes, it may incur tax
liabilities in excess of any cash flows generated by such Class [R-I]
[R-II] Certificate;
c) intends to pay the taxes associated with holding a Class [R-I]
[R-II] Certificate;
d) is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners either satisfy clauses (a),
(b) and (c) of this sentence or are United States persons); and
e) has furnished the Transferor and the Trustee with an effective IRS
Form W-8ECI or successor form and will update such form as may be
required under the applicable Treasury regulations
Capitalized terms used but not defined herein have the meanings assigned
thereto in the Pooling and Servicing Agreement.
G-1-4
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 at his/her free act and deed and at the free act and deed of
the Purchaser.
Subscribed and sworn before me this
_________ day of ______________________,
20_____.
----------------------------------------
Notary Public
G-1-5
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF RESIDUAL CERTIFICATES
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1 (the "Certificates"), Class
[R-I] [R-II]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the above-captioned Certificates evidencing a ___% Percentage Interest in such
Class (the "Residual Certificates"). The Certificates, including the Residual
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 1, 2006 (the "Pooling and Servicing Agreement"), between Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, Midland Loan Services, Inc., as 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, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit G-1. The Transferor does not know or believe
that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Internal Revenue Code of 1986, as amended) as
contemplated by Treasury regulations 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
G-2-1
future. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes
(and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
________________________________________
(Transferor)
Name: __________________________________
Title: _________________________________
G-2-2
EXHIBIT H-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services
a Division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement dated as of March 1, 2006 relating to ML-CFC Commercial
Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates, Series
2006-1 (the "Agreement"). Any term with initial capital letters not otherwise
defined in this notice has the meaning given such term in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
[name of proposed special servicer] to serve as the Special Servicer under the
Agreement.
The designation of [name of proposed special servicer] as Special
Servicer will become final if certain conditions are met and on the date you
will deliver to LaSalle Bank National Association, the trustee under the
Agreement (the "Trustee"), a written confirmation stating that the appointment
of the person designated to become the Special Servicer will not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates.
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.
H-1-1
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
By:
------------------------------------
Name
-------------------------------
Title:
-----------------------------
Xxxxx'x Investors Service, Inc. Standard & Poor's Ratings Services
By: By:
--------------------------------- ------------------------------------
Name: Name:
--------------------------- ------------------------------
Title: Title:
-------------------------- -----------------------------
Date: Date:
------------------------------- ----------------------------------
X-0-0
XXXXXXX X-0
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group, ML-CFC Commercial
Mortgage Trust 2006-1
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated
as of March 1, 2006 relating to ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1 (the "Agreement"),
the undersigned hereby agrees with all the other parties to the Agreement that
the undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges 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 Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 3.23(b) of the Agreement as if it were the Special Servicer hereunder.
[Name of Proposed Special Servicer]
________________________________________
By:
------------------------------------
Name
-----------------------------------
Title:
---------------------------------
H-2-1
EXHIBIT I-1
FORM OF INFORMATION REQUEST FROM
CERTIFICATEHOLDER OR CERTIFICATE OWNER
______________________, 200__
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group,
ML-CFC Commercial Mortgage Trust 0000-0
Xxxxxxxx Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: ML-CFC Commercial Mortgage Trust 2006-1
Commercial Mortgage Pass-Through Certificates, Series 2006-1
In accordance with the Pooling and Servicing Agreement dated as of
March 1, 2006 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), Midland Loan
Services, Inc., as special servicer, and LaSalle Bank National Association, as
trustee (the "Trustee"), with respect to the ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1 (the
"Certificates"), the undersigned (the "Investor") hereby certifies and agrees as
follows:
1. The Investor is a [holder] [beneficial owner] of [$__________
aggregate [Certificate Principal Balance/Certificate Notional Amount]
of] [a ___% Percentage Interest in] the Class ____ Certificates.
2. The Investor is requesting access to the following information (the
"Information") solely for use in evaluating the Investor's investment
in the Certificates:
_____ The information available on the Master Servicer's internet
website pursuant to Section 3.15 of the Pooling and Servicing
Agreement.
_____ The information available on the Trustee's internet website
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
I-1-1
_____ The information identified on Schedule I attached hereto
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of the Master Servicer's or the Trustee's disclosure
to the Investor of the Information, the Investor will keep the
Information confidential (except from such outside Persons as are
assisting it in evaluating the Information), and such Information will
not, without the prior written consent of the Master Servicer or the
Trustee, as applicable, be disclosed by the Investor or by its
Affiliates, officers, directors, partners, shareholders, members,
managers, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided, that the Investor may provide all or any part of the
Information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such
Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and provided
further, that the Investor may provide all or any part of the
Information to its auditors, legal counsel and regulators; and
provided further, that the Investor shall not be obligated to keep
confidential any Information that has previously been made available
on an unrestricted basis and without a password via the Trustee's or
the Master Servicer's, as applicable, Internet Website or has
previously been filed with the Securities and Exchange Commission.
4. The Investor will not use or disclose the Information in any manner
that 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 that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. The Investor hereby acknowledges and agrees that:
(a) Neither the Master Servicer nor the Trustee will make any
representations or warranties as to the accuracy or completeness
of, and will assume no responsibility for, any report, document
or other information delivered pursuant to this request or made
available on its internet website;
(b) Neither the Master Servicer nor the Trustee has undertaken any
obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, a third party, each other or
any other Person that is included in any report, document or
other information delivered pursuant to this request or made
available on its respective internet website;
(c) Any transmittal of any report, document or other information to
the Investor by the Master Servicer or the Trustee is subject to,
which transmittal may (but need not be) accompanied by a letter
containing, the following provision:
I-1-2
By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public
information regarding the Trust which issued Xxxxxxx Xxxxx
Mortgage Investors, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-1, from purchasing or selling such
Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You
also acknowledge and agree that such information is being
provided to you for the purposes of, and such information may be
used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein;
(d) When delivering any report, document or other information
pursuant to this request, the Master Servicer or the Trustee may
(i) indicate the source thereof and may affix thereto any
disclaimer it deems appropriate in its discretion and (ii)
contemporaneously provide such report, document or information to
the Depositor, the Trustee, any Underwriter, any Rating Agency or
Certificateholders or Certificate Owners.
6. The Investor agrees to indemnify and hold harmless the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the
Trust from any damage, loss, cost or liability (including legal fees
and expenses and the cost of enforcing this indemnity) arising out of
or resulting from any unauthorized use or disclosure of the
Information by the Investor or any of its Representatives. The
Investor also acknowledges and agrees that money damages would be both
incalculable and an insufficient remedy for any breach of the terms of
this letter by the Investor or any of its Representatives and that the
Master Servicer, the Trustee or the Trust may seek equitable relief,
including injunction and specific performance, as a remedy for any
such breach. Such remedies are not the exclusive remedies for a breach
of this letter but are in addition to all other remedies available at
law or equity.
I-1-3
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused its name to be signed hereto by
its duly authorized officer, as of the day and year written above.
[CERTIFICATEHOLDER] [BENEFICIAL
OWNER OF A CERTIFICATE]
By:
------------------------------------
Name
-----------------------------------
Title:
---------------------------------
Telephone No.:
-------------------------
I-1-4
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
I-1-5
EXHIBIT I-2
FORM OF INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
______________________, 200__
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group,
ML-CFC Commercial Mortgage Trust 0000-0
Xxxxxxxx Bank, National Association
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: ML-CFC Commercial Mortgage Trust 2006-1 Commercial Mortgage Pass-Through
Certificates, Series 2006-1 (the "Certificates")
In accordance with the Pooling and Servicing Agreement dated as of March 1,
2006 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor (the "Depositor"), Wachovia Bank, National
Association, as master servicer (the "Master Servicer"), Midland Loan Services,
Inc., as special servicer, and LaSalle Bank National Association, as trustee
(the "Trustee"), with respect to the ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1 (the
"Certificates"), the undersigned (the "Investor") hereby certifies and agrees as
follows:
1. The Investor is contemplating an investment in the Class ____
Certificates.
2. The Investor is requesting access to the following information (the
"Information") solely for use in evaluating such possible investment:
_____ The information available on the Master Servicer's internet
website pursuant to Section 3.15 of the Pooling and Servicing
Agreement.
_____ The information available on the Trustee's internet website
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
_____ The information identified on Schedule I attached hereto
pursuant to Sections 3.15 and 4.02 of the Pooling and
Servicing Agreement.
I-2-1
3. In consideration of the Master Servicer's or the Trustee's disclosure
to the Investor of the Information, the Investor 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 Information will not, without the prior written consent
of the Master Servicer or the Trustee, as applicable, be disclosed by
the Investor or by its Affiliates, officers, directors, partners,
shareholders, members, managers, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided, that the Investor may provide all or any
part of the Information to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, but
only if such Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep it confidential; and
provided further, that the Investor may provide all or any part of the
Information to its auditors, legal counsel and regulators; and
provided further, that the Investor shall not be obligated to keep
confidential any Information that has previously been made available
on an unrestricted basis and without a password via the Trustee's or
the Master Servicer's, as applicable, Internet Website or has
previously been filed with the Securities and Exchange Commission.
4. The Investor will not use or disclose the Information in any manner
that 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 that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. The Investor hereby acknowledges and agrees that:
(a) Neither the Master Servicer nor the Trustee will make any
representations or warranties as to the accuracy or completeness
of, and will assume no responsibility for, any report, document
or other information delivered pursuant to this request or made
available on its internet website;
(b) Neither the Master Servicer nor the Trustee has undertaken any
obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, a third party, each other or
any other Person that is included in any report, document or
other information delivered pursuant to this request or made
available on its respective internet website;
(c) Any transmittal of any report, document or other information to
the Investor by the Master Servicer or the Trustee is subject to,
which transmittal may (but need not be) accompanied by a letter
containing, the following provision:
By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public
information regarding the Trust which issued Xxxxxxx Xxxxx
Mortgage
I-2-2
Investors, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-1, from purchasing or selling such
Certificates in circumstances where the other party to the
transaction is not also in possession of such information.
You also acknowledge and agree that such information is
being provided to you for the purposes of, and such
information may be used only in connection with, evaluation
by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial
interest therein;
(d) When delivering any report, document or other information
pursuant to this request, the Master Servicer or the Trustee may
(i) indicate the source thereof and may affix thereto any
disclaimer it deems appropriate in its discretion and (ii)
contemporaneously provide such report, document or information to
the Depositor, the Trustee, any Underwriter, any Rating Agency or
Certificateholders or Certificate Owners.
6. The Investor agrees to indemnify and hold harmless the Master
Servicer, the Special Servicer, the Depositor, the Trustee and the
Trust from any damage, loss, cost or liability (including legal fees
and expenses and the cost of enforcing this indemnity) arising out of
or resulting from any unauthorized use or disclosure of the
Information by the Investor or any of its Representatives. The
Investor also acknowledges and agrees that money damages would be both
incalculable and an insufficient remedy for any breach of the terms of
this letter by the Investor or any of its Representatives and that the
Master Servicer, the Trustee or the Trust may seek equitable relief,
including injunction and specific performance, as a remedy for any
such breach. Such remedies are not the exclusive remedies for a breach
of this letter but are in addition to all other remedies available at
law or equity.
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor 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.:
---------------------
I-2-3
SCHEDULE I
[DESCRIBE INFORMATION REQUESTED]
I-2-4
EXHIBIT J
FORM OF EXCHANGE ACT REPORTABLE EVENT NOTIFICATION
VIA FAX: _________________________
VIA EMAIL: _________________________
VIA TELEPHONE: _________________________
VIA OVERNIGHT MAIL:
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Exchange Act Reportable Event Disclosure
Ladies and Gentlemen:
In accordance with Section 8.16 of the Pooling and Servicing
Agreement, dated as of March 1, 2006 (the "Pooling and Servicing Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Wachovia Bank,
National Association, as master servicer, Midland Loan Services, Inc., as
special servicer, 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 Exchange Act Reportable Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
List of any Attachments hereto to be included in the Exchange Act Reportable
Event Disclosure:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
J-1
Any inquiries related to this notification should be directed to
[_______________], phone number: [_________]; email address: [_______________].
[NAME OF PARTY],
as [role]
By:
-----------------------------------
Name:
Title:
J-2
EXHIBIT K
FORM OF S&P DEFEASANCE CERTIFICATION
FOR LOANS HAVING A PRINCIPAL BALANCE OF LESS THAN (A) $20,000,000,
AND (B) 5% OF OUTSTANDING POOL BALANCE, AND WHICH LOAN IS NOT ONE OF
THE 10 LARGEST LOANS IN THE RESPECTIVE POOL
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Wachovia Bank, National Association, in its capacity as Master Servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of March 1, 2006 (the "Pooling and Servicing Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor, the Master Servicer, Midland
Loan Services, Inc., as special servicer, and LaSalle Bank National
Association, as trustee.
Date: _________, 20___
Re: ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1 -- Mortgage Loan (the "Mortgage Loan")
heretofore secured by real property known as _______.
Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE
UNDERSIGNED BASED UPON DUE DILIGENCE CONSISTENT WITH THE SERVICING STANDARD
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE "SERVICING STANDARD"), AND
(B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR
STANDARD OF CARE GREATER THAN THE DUTIES OF THE MASTER SERVICER UNDER THE
POOLING AND SERVICING AGREEMENT AND THE SERVICING STANDARD.
We hereby notify you and confirm that each of the following is true,
subject to those exceptions, if any, set forth on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
1. The Mortgagor has consummated a defeasance of the Mortgage Loan
of the type checked below:
K-1
____ a full defeasance of the entire outstanding principal
balance ($___________) of the Mortgage Loan; or
____ a partial defeasance of a portion ($__________) of the
Mortgage Loan that represents ___% of the entire principal
balance of the Mortgage Loan ($________);
2. The defeasance was consummated on __________, 20__.
3. The defeasance was completed in all material respects in
accordance with the conditions for defeasance specified in the
Mortgage Loan documents and in accordance with the Servicing
Standard.
4. The defeasance collateral consists only of one or more of the
following: (i) direct debt obligations of the U.S. Treasury, (ii)
direct debt obligations of the Federal National Mortgage
Association, (iii) direct debt obligations of the Federal Home
Loan Mortgage Corporation, or (iv) interest-only direct debt
obligations of the Resolution Funding Corporation. Such
defeasance collateral consists of securities that (i) if they
include a principal obligation, the principal due at maturity
cannot vary or change, (ii) provide for interest at a fixed rate
and (iii) are not subject to prepayment, call or early
redemption.
5. After the defeasance, the defeasance collateral will be owned by
an entity (the "Defeasance Obligor") that: (i) is the original
Mortgagor, (ii) is a Single-Purpose Entity (as defined in the S&P
Criteria), (iii) is subject to restrictions in its organizational
documents substantially similar to those contained in the
organizational documents of the original Mortgagor with respect
to bankruptcy remoteness and single purpose, (iv) has been
designated as the Defeasance Obligor by the originator of the
Mortgage Loan pursuant to the terms of the Mortgage Loan
documents, or (v) has delivered a letter from Standard & Poor's
confirming that the organizational documents of such Defeasance
Obligor were previously approved by Standard & Poor's. The
Defeasance Obligor owns no assets other than defeasance
collateral and (only in the case of the original Mortgagor) real
property securing one or more Mortgage Loans included in the pool
under the Pooling and Servicing Agreement (the "Pool").
6. If such Defeasance Obligor (together with its affiliates) holds
more than one defeased loan, it does not (together with its
affiliates) hold defeased loans aggregating more than $20 Million
or more than five percent (5%) of the aggregate certificate
balance of the Certificates as of the date of the most recent
Distribution Date Statement received by the Master Servicer (the
"Current Report").
7. The defeasance documents require that the defeasance collateral
be credited to an eligible account (as defined in the S&P
Criteria) that must
K-2
be maintained as a securities account by a securities
intermediary that is at all times an Eligible Institution (as
defined in the S&P Criteria). The securities intermediary may
reinvest proceeds of the defeasance collateral only in Permitted
Investments (as defined in the Pooling and Servicing Agreement).
8. The securities intermediary is obligated to pay from the proceeds
of the defeasance collateral, directly to the Master Servicer's
collection account, all scheduled payments on the Mortgage Loan
or, in a partial defeasance, not less than 125% of the portion of
such scheduled payments attributed to the allocated loan amount
for the real property defeased (the "Scheduled Payments").
9. The Servicer received written confirmation from an independent
certified public accountant stating that (i) revenues from 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 including the payment in full
of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or,
in the case of an ARD Loan, on its Anticipated Repayment Date),
(ii) the revenues received in any month from the defeasance
collateral will be applied to make Scheduled Payments within four
(4) months after the date of receipt, (iii) the defeasance
collateral is not subject to prepayment, call or early
redemption, and (iv) interest income from the defeasance
collateral to the Defeasance Obligor in any tax 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, other than in the year in which the
Maturity Date or Anticipated Repayment Date will occur, when
interest income will exceed interest expense.
10. The Master Servicer received opinions of counsel that, subject to
customary qualifications and exceptions, (i) the defeasance will
not cause the Trust to fail to qualify as a REMIC for purpose of
the Internal Revenue Code, (ii) the agreements executed by the
Mortgagor and the Defeasance Obligor in connection with the
defeasance are enforceable against them in accordance with their
terms, and (iii) the Trustee will have a perfected, first
priority security interest in the defeasance collateral.
11. The agreements executed in connection with the defeasance (i)
prohibit subordinate liens against the defeasance collateral,
(ii) provide for payment from sources other than the defeasance
collateral 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, (iii) permit release of surplus
defeasance collateral and earnings on reinvestment to the
Defeasance Obligor only after the Mortgage Loan has been paid in
full, (iv) include
K-3
representations and/or covenants of the Mortgagor and/or
securities intermediary substantially as set forth on Exhibit B
hereto, (v) provide for survival of such representations; and
(vi) do not permit waiver of such representations and covenants.
12. The outstanding principal balance of the Mortgage Loan
immediately before the defeasance was less than $20,000,000 and
less than 5% of the aggregate certificate balance of the
Certificates as of the date of the Current Report. The Mortgage
Loan is not one of the ten (10) largest loans in the Mortgage
Pool.
13. Copies of all material agreements, instruments, organizational
documents, opinions of counsel, accountant's report and other
items delivered in connection with the defeasance will be
provided to you upon request.
14. The individual executing this notice is an authorized officer or
a servicing officer of the Master Servicer.
IN WITNESS WHEREOF, the Master Servicer has caused this notice to be
executed as of the date captioned above.
WACHOVIA BANK, NATIONAL ASSOCIATION
As Master Servicer
By:
-------------------------------------
Name:
Title:
K-4
EXHIBIT L
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GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Trustee
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies Trustee
and procedures are instituted to monitor the third party's performance and Master Servicer
compliance with such servicing activities. Special Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for N/A
the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Master Servicer
participating in the servicing function throughout the reporting period in the Special Servicer
amount of coverage required by and otherwise in accordance with the terms of the Custodian
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Trustee
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor Trustee
are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
made, reviewed and approved as specified in the transaction agreements. Trustee
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Trustee
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Trustee
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a foreign Special Servicer
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 access. Trustee
Master Servicer
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities Trustee
related bank accounts, including custodial accounts and related bank clearing Master Servicer
accounts. These reconciliations are (A) mathematically accurate; (B) prepared Special Servicer
within 30 calendar days after the bank statement cutoff date, or such other
number of days specified in the transaction agreements; (C) reviewed and approved
by someone other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are resolved within
90 calendar days of their original identification, or such other number of days
specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
L-1
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SERVICING CRITERIA CRITERIA
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1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Trustee
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 Reporting Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the transaction
agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Trustee
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Trustee
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
Custodian
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements Master Servicer
Special Servicer
Custodian
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and Trustee
approved in accordance with any conditions or requirements in the transaction Master Servicer
agreements. Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the Master Servicer
related mortgage loan documents are posted to the Servicer's obligor records Special Servicer
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 Reporting Servicer's records regarding the mortgage loans agree with the Master Servicer
Reporting Servicer's records with respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans (e.g., Master Servicer
loan modifications or re-agings) are made, reviewed and approved by authorized Special Servicer
personnel in accordance with the transaction agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and Special Servicer
deeds in lieu of foreclosure, foreclosures 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 the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Such Special Servicer
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable Master Servicer
rates are computed based on the related mortgage loan documents.
L-2
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SERVICING
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) Master Servicer
such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates, or
such other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf of Master Servicer
an obligor are paid from the servicer's funds and not charged to the obligor,
unless the late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days to Master Servicer
the obligor's records maintained by the servicer, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded Master Servicer
in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through N/A
(3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction
agreements.
[NAME OF REPORTING SERVICER]
Date:
-------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
X-0
XXXXXXX X-0
FORM OF PURCHASE OPTION NOTICE
[Date]
[Purchase Option Holder]
Re: ML-CFC Commercial Mortgage Trust 2006-1
Commercial Mortgage Pass-Through Certificates, Series 2006-1
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option") to
purchase Mortgage Loan number ___ from the Trust Fund, pursuant to Section 3.18
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
dated as of March 1, 2006, by and among Xxxxxxx Xxxxx Mortgage Investors, Inc.,
as depositor, Wachovia Bank, National Association, as master servicer, Midland
Loan Services, Inc., as special servicer, and LaSalle Bank National Association,
as trustee. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase Option
in respect of Mortgage Loan number ___, pursuant to your Purchase Option Notice
dated _______, a copy of which is attached hereto, is effective. Pursuant to
Section 3.18 of the Pooling and Servicing Agreement and your Purchase Option
Notice, closing of [your] [______'s] acquisition of Mortgage Loan number ___
shall occur within ten (10) Business Days of your receipt of this notice, at the
place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Purchase Option Holder in connection with assignment
and release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number and the related
Mortgaged Property will be released and the related Mortgage Loan File will be
delivered to [you] [_______] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [______] the
ownership of Mortgage Loan number _____, together with [describe other documents
or instruments reasonably required to consummate the purchase] should be
delivered to [______] for review as soon as is practicable.
[Provide Special Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed copy
and return it to my attention.
M-1-1
Sincerely,
-----------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Purchase Option Holder's Acknowledgment
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
X-0-0
XXXXXXX X-0
FORM OF PURCHASE OPTION ASSIGNMENT BY
THE SPECIAL SERVICER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made effective as
of [________] by and between Midland Loan Services, Inc. ("Assignor") and
[_______________] ("Assignee") in connection with (i) the Pooling and Servicing
Agreement dated as of March 1, 2006 (the "Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, Assignor as Special Servicer, and LaSalle Bank
National Association, as Trustee (the "Trustee"), with respect to the ML-CFC
Commercial Mortgage Trust 2006-1, Series 2006-1 (the "Series 2006-1
Securitization"), and (ii) the transfer of the Loan (defined below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment shall
have the respective meanings assigned to them in the Agreement.
1. The Trust is the owner of a Mortgage Loan in the original principal
amount of $[_______] that is included in the Series 2006-1 Securitization and is
secured by the Mortgaged Property commonly known as [__________________________]
(the "Loan"). The Loan is a Defaulted Mortgage Loan under the Agreement and is
being serviced and administered by Assignor in its capacity as Special Servicer.
2. Assignor, (i) pursuant to Section 3.18(c) of the Agreement, is the
deemed assignee of the Purchase Option with respect to such Loan [for a 15-day
period], (ii) pursuant to Section 3.18(c) of the Agreement, has the
unconditional right to assign the Purchase Option to a third party, and (iii)
has given all notices, if any, required to be given to any Person in order to
assign the Purchase Option and for the assignee thereof to exercise the Purchase
Option and purchase the Loan pursuant thereto.
3. Assignee intends to purchase the Loan in compliance with the Agreement
and has requested that Assignor assign the Purchase Option to Assignee, and
Assignor desires to assign the Purchase Option to Assignee, pursuant to the
terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under Section 3.18 of the Agreement without any
representation or warranty of any kind whatsoever.
This Assignment is being executed by Assignee and Assignor and shall be
binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. Nothing in this
Assignment shall be deemed to create or imply any right or benefit in any person
other than Assignee, Assignor or their respective permitted successors and
assigns.
M-2-1
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of
the date first set forth above.
ASSIGNOR: MIDLAND LOAN SERVICES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASSIGNEE: [ASSIGNEE]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASSIGNEE CONTACT INFORMATION:
Address: ___________________________
____________________________________
____________________________________
Telephone No.: _____________________
Facsimile: _________________________
M-2-2
EXHIBIT M-3
FORM OF PURCHASE OPTION ASSIGNMENT
BY PLURALITY SUBORDINATE CERTIFICATEHOLDER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made effective as
of [________] by and between Plurality Subordinate Certificateholder(s)
("Assignor") and [_______________] ("Assignee") in connection with (i) the
Pooling and Servicing Agreement dated as of March 1, 2006 (the "Agreement"), by
and among Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Wachovia Bank,
National Association, as Master Servicer, Midland Loan Services, Inc., as
Special Servicer, and LaSalle Bank National Association, as trustee (the
"Trustee"), with respect to the ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1 (the "Series 2006-1
Securitization"), and (ii) the transfer of the Loan (defined below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment shall
have the respective meanings assigned to them in the Agreement.
1. The Trust is the owner of a Mortgage Loan in the original principal
amount of $[_______] that is included in the Series 2006-1
Securitization and is secured by the Mortgaged Property commonly known
as [___________________________] (the "Loan"). The Loan is a Defaulted
Mortgage Loan under the Agreement and is being serviced and
administered by Midland Loan Services, Inc. in its capacity as Special
Servicer.
2. Assignor (i) is the Plurality Subordinate Certificateholder under the
Agreement, (ii) pursuant to Section 3.18(c) of the Agreement, holds a
Purchase Option with respect to the Loan, (iii) pursuant to Section
3.18 of the Agreement, has the unconditional right to assign the
Purchase Option to a third party, and (iv) has given all notices, if
any, required to be given to any Person in order to assign the
Purchase Option and for the assignee thereof to exercise the Purchase
Option and purchase the Loan pursuant thereto.
3. Assignee intends to purchase the Loan in compliance with the Agreement
and has requested that Assignor assign the Purchase Option to
Assignee, and Assignor desires to assign the Purchase Option to
Assignee, pursuant to the terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under Section 3.18 of the Agreement without any
representation or warranty of any kind whatsoever.
This Assignment is being executed by Assignee and Assignor and shall be
binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This
M-3-1
Assignment may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument. Nothing in this Assignment shall be deemed to create or imply
any right or benefit in any person other than Assignee, Assignor or their
respective permitted successors and assigns.
IN WITNESS WHEREOF, this Assignment has been executed by the parties as of
the date first set forth above.
ASSIGNOR: PLURALITY SUBORDINATE
CERTIFICATEHOLDER
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASSIGNEE: [ASSIGNEE]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASSIGNEE CONTACT INFORMATION:
Address: __________________________
___________________________________
___________________________________
Telephone No.: ____________________
Facsimile: ________________________
M-3-2
EXHIBIT N
[RESERVED]
N-1
