EXHIBIT NO. 99.1
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XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
CWCAPITAL ASSET MANAGEMENT LLC,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-HQ6
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.............................................. 6
Section 1.2 Calculations Respecting Mortgage Loans................... 80
Section 1.3 Calculations Respecting Accrued Interest................. 81
Section 1.4 Interpretation........................................... 81
Section 1.5 ARD Loans................................................ 82
Section 1.6 Certain Matters with respect to Loan Pairs and A/B
Mortgage Loans........................................ 82
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans............................. 84
Section 2.2 Acceptance by Trustee.................................... 87
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of
Representations and Warranties........................ 90
Section 2.4 Representations and Warranties........................... 96
Section 2.5 Conveyance of Interests.................................. 97
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans.. 97
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates......................................... 98
Section 3.2 Registration............................................. 99
Section 3.3 Transfer and Exchange of Certificates.................... 99
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates........ 105
Section 3.5 Persons Deemed Owners.................................... 106
Section 3.6 Access to List of Certificateholders' Names and
Addresses............................................. 106
Section 3.7 Book-Entry Certificates.................................. 106
Section 3.8 Notices to Clearing Agency............................... 110
Section 3.9 Definitive Certificates.................................. 110
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.......................... 000
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Xxxxxxx 0.0X X&X Advances with Respect to Non-Serviced Mortgage Loans
and Serviced Pari Passu Mortgage Loans................ 111
Section 4.2 Servicing Advances....................................... 113
Section 4.3 Advances by the Trustee and the Fiscal Agent............. 114
Section 4.4 Evidence of Nonrecoverability............................ 115
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan....................... 116
Section 4.6 Reimbursement of Advances and Advance Interest........... 117
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.............................................. 118
Section 5.2 Application of Funds in a Certificate Account and
Interest Reserve Account.............................. 123
Section 5.3 Distribution Account, Reserve Account and Interest
Reserve Account....................................... 133
Section 5.4 Paying Agent Reports..................................... 135
Section 5.5 Paying Agent Tax Reports................................. 138
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.................................. 138
Section 6.2 REMIC I.................................................. 139
Section 6.3 REMIC II................................................. 139
Section 6.4 Reserved................................................. 141
Section 6.5 REMIC III and Excess Interest Grantor Trust.............. 141
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability................... 150
Section 6.7 Net Aggregate Prepayment Interest Shortfalls............. 153
Section 6.8 Adjustment of Servicing Fees............................. 153
Section 6.9 Appraisal Reductions..................................... 153
Section 6.10 Compliance with Withholding Requirements................. 154
Section 6.11 Prepayment Premiums...................................... 154
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND THE
LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee, the Fiscal Agent and the Paying
Agent................................................. 155
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent
and the Paying Agent.................................. 157
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not
Liable for Certificates or Interests or Mortgage
Loans................................................. 159
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Section 7.4 The Trustee, the Fiscal Agent and the Paying Agent May
Own Certificates...................................... 160
Section 7.5 Eligibility Requirements for the Trustee, the Fiscal
Agent and the Paying Agent............................ 161
Section 7.6 Resignation and Removal of the Trustee, the Fiscal Agent
or the Paying Agent................................... 161
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.......... 164
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or
Paying Agent.......................................... 164
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian............................................. 165
Section 7.10 Authenticating Agents.................................... 167
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the
Paying Agent.......................................... 168
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent, the
Paying Agent and the Servicer Report Administrator.... 170
Section 7.13 Collection of Moneys..................................... 170
Section 7.14 Trustee To Act; Appointment of Successor................. 170
Section 7.15 Notification to Holders.................................. 173
Section 7.16 Representations and Warranties of the Trustee, the Fiscal
Agent and the Paying Agent............................ 173
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee, the Fiscal Agent and the
Paying Agent.......................................... 175
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders.................................... 176
Section 7.19 Fiscal Agent Termination Event........................... 177
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties..................... 178
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by each Master Servicer.................... 181
Section 8.3 Master Servicer's General Power and Duties............... 181
Section 8.4 Primary Servicing and Sub-Servicing...................... 188
Section 8.5 Servicers May Own Certificates........................... 189
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes
and Other............................................. 189
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause................. 192
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.. 196
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit
of the Certificateholders............................. 197
Section 8.10 Servicing Compensation................................... 198
Section 8.11 Master Servicer Reports; Account Statements.............. 199
Section 8.12 Annual Statement as to Compliance........................ 202
Section 8.13 Annual Independent Public Accountants' Servicing Report.. 202
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the
Mortgaged Properties.................................. 203
Section 8.15 Other Available Information and Certain Rights of the
Master Servicers...................................... 204
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Section 8.16 Rule 144A Information.................................... 206
Section 8.17 Inspections.............................................. 208
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents.............................................. 208
Section 8.19 Specially Serviced Mortgage Loans........................ 212
Section 8.20 Representations, Warranties and Covenants of each Master
Servicer.............................................. 213
Section 8.21 Merger or Consolidation.................................. 216
Section 8.22 Resignation of Master Servicer........................... 216
Section 8.23 Assignment or Delegation of Duties by Master Servicer.... 216
Section 8.24 Limitation on Liability of the Master Servicers and
Others................................................ 217
Section 8.25 Indemnification; Third-Party Claims...................... 219
Section 8.26 1934 Act Reporting....................................... 221
Section 8.27 Compliance with REMIC Provisions......................... 223
Section 8.28 Termination.............................................. 223
Section 8.29 Procedure Upon Termination............................... 226
Section 8.30 Operating Adviser Contact with Master Servicer and
Special Servicer...................................... 228
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer............................... 229
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of Special Servicer................................... 231
Section 9.3 Sub-Servicers............................................ 231
Section 9.4 Special Servicer General Powers and Duties............... 231
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced
Mortgage Loans; Due-On-Encumbrance Clauses............ 235
Section 9.6 Release of Mortgage Files................................ 240
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee................... 241
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer.............................................. 242
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies.......................... 243
Section 9.10 Presentment of Claims and Collection of Proceeds......... 245
Section 9.11 Compensation to the Special Servicer..................... 245
Section 9.12 Realization Upon Defaulted Mortgage Loans................ 247
Section 9.13 Foreclosure.............................................. 249
Section 9.14 Operation of REO Property................................ 249
Section 9.15 Sale of REO Property..................................... 252
Section 9.16 Realization on Collateral Security....................... 254
Section 9.17 Reserved................................................. 254
Section 9.18 Annual Officer's Certificate as to Compliance............ 254
Section 9.19 Annual Independent Accountants' Servicing Report......... 254
Section 9.20 Merger or Consolidation.................................. 255
Section 9.21 Resignation of Special Servicer.......................... 255
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Section 9.22 Assignment or Delegation of Duties by Special Servicer... 256
Section 9.23 Limitation on Liability of the Special Servicer and
Others................................................ 256
Section 9.24 Indemnification; Third-Party Claims...................... 259
Section 9.25 Reserved................................................. 260
Section 9.26 Special Servicer May Own Certificates.................... 260
Section 9.27 Tax Reporting............................................ 260
Section 9.28 Application of Funds Received............................ 261
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions............................................ 261
Section 9.30 Termination.............................................. 261
Section 9.31 Procedure Upon Termination............................... 264
Section 9.32 Certain Special Servicer Reports......................... 266
Section 9.33 Special Servicer to Cooperate with the Master Servicers
and Paying Agent...................................... 270
Section 9.34 Reserved................................................. 271
Section 9.35 Reserved................................................. 271
Section 9.36 Sale of Defaulted Mortgage Loans......................... 271
Section 9.37 Operating Adviser; Elections............................. 274
Section 9.38 Limitation on Liability of Operating Adviser............. 276
Section 9.39 Duties of Operating Adviser.............................. 276
Section 9.40 Rights of the Holder of a B Note......................... 278
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans.................................... 279
Section 10.2 Procedure Upon Termination of Trust...................... 282
Section 10.3 Additional Trust Termination Requirements................ 283
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.......................... 284
Section 11.2 Access to List of Holders................................ 285
Section 11.3 Acts of Holders of Certificates.......................... 285
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration..................................... 286
Section 12.2 Prohibited Transactions and Activities................... 291
Section 12.3 Modifications of Mortgage Loans.......................... 292
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status.......................................... 292
Section 12.5 Excess Interest Grantor Trust............................ 292
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement.............................. 293
Section 13.2 Entire Agreement......................................... 293
Section 13.3 Amendment................................................ 293
Section 13.4 GOVERNING LAW............................................ 296
Section 13.5 Notices.................................................. 296
Section 13.6 Severability of Provisions............................... 297
Section 13.7 Indulgences; No Waivers.................................. 297
Section 13.8 Headings Not to Affect Interpretation.................... 297
Section 13.9 Benefits of Agreement.................................... 297
Section 13.10 Special Notices to the Rating Agencies................... 297
Section 13.11 Counterparts............................................. 299
Section 13.12 Intention of Parties..................................... 299
Section 13.13 Recordation of Agreement................................. 301
Section 13.14 Rating Agency Monitoring Fees............................ 301
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2A Certificate
EXHIBIT A-4 Form of Class A-2B Certificates
EXHIBIT A-5 Form of Class A-AB Certificate
EXHIBIT A-6 Form of Class A-3 Certificate
EXHIBIT A-7 Form of Class A-4A Certificate
EXHIBIT A-8 Form of Class A-4B Certificate
EXHIBIT A-9 Form of Class A-J Certificate
EXHIBIT A-10 Form of Class B Certificate
EXHIBIT A-11 Form of Class C Certificate
EXHIBIT A-12 Form of Class D Certificate
EXHIBIT A-13 Form of Class E Certificate
EXHIBIT A-14 Form of Class F Certificate
EXHIBIT A-15 Form of Class G Certificate
EXHIBIT A-16 Form of Class H Certificate
EXHIBIT A-17 Form of Class J Certificate
EXHIBIT A-18 Form of Class K Certificate
EXHIBIT A-19 Form of Class L Certificate
EXHIBIT A-20 Form of Class M Certificate
EXHIBIT A-21 Form of Class N Certificate
EXHIBIT A-22 Form of Class O Certificate
EXHIBIT A-23 Form of Class P Certificate
EXHIBIT A-24 Form of Class Q Certificate
EXHIBIT A-25 Form of Class S Certificate
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EXHIBIT A-26 Form of Class T Certificate
EXHIBIT A-27 Form of Class R-I Certificate
EXHIBIT A-28 Form of Class R-II Certificate
EXHIBIT A-29 Form of Class R-III Certificate
EXHIBIT A-30 Form of Class X-1 Certificate
EXHIBIT A-31 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Reserved
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d)
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement (MSMC)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement (PMCF)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement (Xxxxx Fargo)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement (SunTrust)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Xxxxx Fargo Master Servicer
(Section 8.3(c))
EXHIBIT S-1A Form of Power of Attorney to PAR Master Servicer
(Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U-1 Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a) (Xxxxx Master Servicer)
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EXHIBIT U-2 Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a)) and Additional Lien, Monetary Encumbrance and
Mezzanine Financing Submission Package to the Special Servicer
(Section 8.7(e)) (PAR Master Servicer)
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer (Section
8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA Form of primary servicing agreement (Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 8.26 (b))
EXHIBIT DD Form of Notice with respect to each Non-Serviced mortgage Loan
SCHEDULE I MSMC Loan Schedule
SCHEDULE II PMCF Loan Schedule
SCHEDULE III Xxxxx Fargo Loan Schedule
SCHEDULE IV SunTrust Loan Schedule
SCHEDULE V Reserved
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts (Section
8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g)
is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE X Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XI List of Mortgage Loans that have Scheduled Payments after the
end of a Collection Period
SCHEDULE XII Loans that Accrue on an Actual/360 basis, but whose Servicing
Fees Accrue on a 30/360 Basis
SCHEDULE XIII Class A-AB Planned Principal Balance
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THIS POOLING AND SERVICING AGREEMENT is dated as of August 1, 2005
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), PRUDENTIAL ASSET RESOURCES, INC.,
as a master servicer (the "PAR Master Servicer"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a master servicer (the "Xxxxx Fargo Master Servicer," and
together with the PAR Master Servicer, the "Master Servicers"), CWCAPITAL ASSET
MANAGEMENT LLC, as special servicer (the "Special Servicer"), LASALLE BANK
NATIONAL ASSOCIATION, as trustee of the Trust (the "Trustee"), ABN AMRO BANK
N.V., only in its capacity as a fiscal agent pursuant to Article IV hereof (the
"Fiscal Agent") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, only in its capacity
as paying agent (the "Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), Prudential
Mortgage Capital Funding LLC, as seller ("PMCF"), Xxxxx Fargo Bank, National
Association, as seller ("Xxxxx Fargo") and SunTrust Bank, as seller
("SunTrust"), and will be the owner of the Mortgage Loans and the other property
being conveyed by it to the Trustee for inclusion in the Trust which is hereby
created. On the Closing Date, the Depositor will acquire (i) the REMIC I Regular
Interests and the Class R-I Certificates as consideration for its transfer to
the Trust of the Mortgage Loans (other than any Excess Interest payable thereon)
and the other property constituting REMIC I; (ii) the REMIC II Regular Interests
and the Class R-II Certificates as consideration for its transfer of the REMIC I
Regular Interests to the Trust; and (iii) the REMIC III Certificates as
consideration for its transfer of the REMIC II Regular Interests to the Trust;
and (iv) the Class T Certificates as consideration for its transfer to the Trust
of the right to receive any Excess Interest (such right, and any amounts on
deposit from time to time in the Excess Interest Sub-account (as hereinafter
defined), the "Excess Interest Grantor Trust"). The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
foregoing and the issuance of (A) the REMIC I Regular Interests and the Class
R-I Certificates representing in the aggregate the entire beneficial ownership
of REMIC I, (B) the REMIC II Regular Interests and the Class R-II Certificates
representing in the aggregate the entire beneficial ownership of REMIC II, (C)
the REMIC III Certificates representing in the aggregate the entire beneficial
ownership of REMIC III and, (D) the Class T Certificates representing in the
aggregate the entire beneficial interest in the Excess Interest Grantor Trust.
All covenants and agreements made by the Depositor and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the REMIC II
Regular Interests, the REMIC Regular Certificates, the Residual Certificates and
the Class T Certificates. The parties hereto are entering into this Agreement,
and the Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A Senior, Class A-J, Class X-2 Class B, Class C, Class D,
Class E and Class F Certificates will be offered for sale pursuant to the
prospectus (the "Prospectus") dated June 7, 2005 as supplemented by the
preliminary prospectus supplement dated July 20, 2005 (together with the
Prospectus, the "Preliminary Prospectus Supplement"), and as further
supplemented by the final prospectus supplement dated July 29, 2005 (together
with the
Prospectus, the "Final Prospectus Supplement"), and the Class X-1, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q,
Class S and Class T Certificates will be offered for sale pursuant to a Private
Placement Memorandum dated July 29, 2005.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC I Regular Interests and the
Class R-I Certificates comprising the interests in REMIC I, each Class of REMIC
II Regular Interests and the Class R-II Certificates comprising the interests in
REMIC II, each Class of REMIC III Certificates comprising the interests in REMIC
III and the Class T Certificates representing pro rata undivided beneficial
interests in the Excess Interest Grantor Trust (each of REMIC I, REMIC II, REMIC
III and the Excess Interest Grantor Trust being created hereunder):
REMIC I
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than any Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I").
The REMIC I Regular Interests will be designated as the "regular
interests" in REMIC I. Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan, an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a "latest possible maturity date" set to the Maturity Date
of the Mortgage Loan to which the Corresponding REMIC I Regular Interest
relates. The Class R-I Certificate will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance and no
Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests have been
paid in full.
REMIC II
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II").
The REMIC II Regular Interests will be designated as the "regular
interests" in REMIC II. The REMIC II Regular Interests have the pass-through
rates and Certificate Balances set forth in the definition thereof. The Class
R-II Certificates will be designated as the sole Class of residual interests in
REMIC II and will have no Certificate Balance and no Pass-Through Rate, but will
be entitled to receive the proceeds of any assets remaining in REMIC II after
all Classes of REMIC II Regular Interests have been paid in full.
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The following table sets forth the Class or Component designation, the
corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class X-1 or Class X-2
Certificates and the initial Certificate Balance for each Class of Principal
Balance Certificates (the "Corresponding Certificates").
<TABLE>
INITIAL CORRESPONDING
CORRESPONDING REMIC II COMPONENTS OF
INITIAL CLASS REMIC II REGULAR INTEREST CLASS X-1 OR
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE CLASS X-2
CERTIFICATES BALANCE INTERESTS (1) BALANCE CERTIFICATES (1)
------------- -------------- ------------- ---------------- ----------------
Class A-1 $ 121,200,000 A-1-1 $ 15,044,000 A-1-1
A-1-2 $104,658,000 X-0-0
X-0-0 $ 1,498,000 A-1-3
Class A-1A $ 318,834,000 A-1A-1 $ 1,360,000 A-1A-1
A-1A-2 $ 13,238,000 A-1A-2
A-1A-3 $ 13,796,000 A-1A-3
A-1A-4 $ 13,064,000 A-1A-4
A-1A-5 $113,236,000 A-1A-5
A-1A-6 $ 7,847,000 A-1A-6
A-1A-7 $ 7,388,000 A-1A-7
A-1A-8 $ 6,995,000 A-1A-8
A-1A-9 $141,910,000 A-1A-9
Class A-2A $ 294,875,000 A-2A-1 $106,039,000 A-2A-1
A-2A-2 $101,733,000 A-2A-2
A-2A-3 $ 87,103,00 A-2A-3
Class A-2B $ 42,125,000 A-2B $ 42,125,000 X-0X
Xxxxx X-XX $ 111,100,000 A-AB $111,100,000 A-AB
Class A-3 $ 103,000,000 A-3 $103,000,000 A-3
Class A-4A $1,060,595,000 A-4A-1 $ 28,804,000 A-4A-1
A-4A-2 $ 78,847,000 A-4A-2
A-4A-3 $107,627,000 A-4A-3
A-4A-4 $ 72,451,000 A-4A-4
A-4A-5 $772,866,000 A-4A-5
Class A-4B $ 151,514,000 A-4B $151,514,000 A-4B
Class A-J $ 175,571,000 A-J $175,571,000 A-J
Class B $ 24,098,000 B $ 24,098,000 B
Class C $ 34,425,000 C $ 34,425,000 C
Class D $ 27,541,000 D-1 $ 14,211,000 X-0
X-0 $ 13,330,000 D-2
Class E $ 24,098,000 E-1 $ 8,194,000 X-0
X-0 $ 15,904,000 E-2
Class F $ 27,541,000 F-1 $ 2,622,000 F-1
F-2 $ 24,919,000 F-2
Class G $ 27,540,000 G $ 27,540,000 G
Class H $ 34,426,000 H-1 $ 28,555,000 H-1
H-2 $ 5,871,000 H-2
</TABLE>
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<TABLE>
INITIAL CORRESPONDING
CORRESPONDING REMIC II COMPONENTS OF
INITIAL CLASS REMIC II REGULAR INTEREST CLASS X-1 OR
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE CLASS X-2
CERTIFICATES BALANCE INTERESTS (1) BALANCE CERTIFICATES (1)
------------- -------------- ------------- ---------------- ----------------
Class J $30,983,000 J-1 $13,032,000 J-1
J-2 $17,951,000 J-2
Class K $41,311,000 K-1 $ 3,875,000 K-1
K-2 $37,436,000 K-2
Class L $10,327,000 L $10,327,000 L
Class M $10,328,000 M $10,328,000 M
Class N $17,213,000 N $17,213,000 N
Class O $ 3,442,000 O $ 3,442,000 O
Class P $10,328,000 P $10,328,000 P
Class S $10,328,000 S $10,328,000 S
</TABLE>
(1) The REMIC II Regular Interests and the Components of the Class X-1 and Class
X-2 Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute the
"Corresponding REMIC II Regular Interest" and the "Corresponding Components,"
respectively, with respect to each other.
REMIC III
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests will be designated as the "regular interests" in REMIC III and the
Class R-III Certificates (together with the REMIC Regular Certificates, the
"REMIC III Certificates") will be designated as the sole Class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates comprising
the interests in REMIC III created hereunder.
<TABLE>
REMIC III Initial Pass- Initial Aggregate
Interest Through Certificate Principal Final Scheduled
Designation Rate(a) Balance or Notional Amount Distribution Date(b)
-------------- ------------- -------------------------- --------------------
Class A-1 4.646% $121,200,000 6/13/2010
Class A-1A 4.946% $318,834,000 7/13/2015
Class A-2A 4.882% $294,875,000 8/13/2010
Class A-2B 4.913% $ 42,125,000 8/13/2010
</TABLE>
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<TABLE>
REMIC III Initial Pass- Initial Aggregate
Interest Through Certificate Principal Final Scheduled
Designation Rate(a) Balance or Notional Amount Distribution Date(b)
-------------- ------------- -------------------------- --------------------
Class A-AB 4.973% $ 111,100,000 12/13/2014
Class A-3 5.392% $ 103,000,000 10/13/2014
Class A-4A 4.989% $1,060,595,000 6/13/2015
Class A-4B 5.042% $ 151,514,000 6/13/2015
Class A-J 5.073% $ 175,571,000 7/13/2015
Class X-1 0.054% $2,754,054,199 3/13/2020
Class X-2 0.557% $2,672,241,000 8/13/2013
Class B 5.152% $ 24,098,000 7/13/2015
Class C 5.172% $ 34,425,000 7/13/2015
Class D 5.202% $ 27,541,000 7/13/2015
Class E 5.231% $ 24,098,000 7/13/2015
Class F 5.271% $ 27,541,000 7/13/2015
Class G 5.379% $ 27,540,000 7/13/2015
Class H 5.602% $ 34,426,000 7/13/2015
Class J 5.602% $ 30,983,000 7/13/2015
Class K 5.602% $ 41,311,000 7/13/2015
Class L 4.756% $ 10,327,000 8/13/2015
Class M 4.756% $ 10,328,000 8/13/2015
Class N 4.756% $ 17,213,000 8/13/2015
Class O 4.756% $ 3,442,000 8/13/2015
Class P 4.756% $ 10,328,000 8/13/2015
Class Q 4.756% $ 10,328,000 8/13/2015
Class S 4.756% $ 41,311,199 3/13/2020
Class R-III(c) N/A N/A N/A
</TABLE>
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of REMIC III Certificates (other than the
Residual Certificates) will be determined as described herein under the
definition of "Pass-Through Rate." The initial Pass-Through Rates shown
above are approximate for the Class H, Class J, Class K, Class X-1 and
Class X-2 Certificates.
(b) The Final Scheduled Distribution Date for each Class of Certificates is the
Distribution Date on which such Class is expected to be paid in full,
assuming that timely payments (and no prepayments) will be made on the
Mortgage Loans in accordance with their terms (except that each ARD Loan
will be prepaid in full on its Anticipated Repayment Date). Each ARD Loan
is assumed to repay in full on its Anticipated Repayment Date.
(c) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $2,754,054,199.
EXCESS INTEREST GRANTOR TRUST
The parties intend that the portion of the Trust consisting of Excess
Interest and the Excess Interest Sub-account (such portion of the Trust, the
"Excess Interest Grantor Trust")
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will be treated as a grantor trust under Subpart E of Part 1 of Subchapter J of
the Code and the Class T Certificates represent pro rata undivided beneficial
interests in the Excess Interest Grantor Trust. The Class T Certificates will
have no Certificate Balance and no Pass-Through Rate.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"A NOTE" means, with respect to any A/B Mortgage Note, the mortgage
note(s) that is senior in right of payment to the related B Note to the extent
set forth in the related Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of a Certificate Account (but which are not included in the
Trust) created and maintained by the applicable Master Servicer pursuant to
Section 5.1(c) on behalf of the holder of a related B Note. Any such
sub-account(s) shall be maintained as a sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means the Coronado Center Loan Group, the County
Line Commerce Center Loan Group and the FRIS Chkn Loan Group or any other
mortgage loan serviced under this Agreement that is divided into senior mortgage
note(s) and a subordinated mortgage note, which senior mortgage note(s) is
included in the Trust (other than the FRIS Chkn Companion Loan, which is not
included in the Trust). References herein to an A/B Mortgage Loan shall be
construed to refer to the aggregate indebtedness under the related A Note and
the related B Note.
"ACCOUNTANT" means a person engaged in the practice of accounting who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates, other than
the Residual Certificates, interest accrued during the Interest Accrual Period
relating to such Distribution Date on the Aggregate Certificate Balance of such
Class or Interest as of the close of business on the immediately preceding
Distribution Date at the respective rates per annum set forth in the definition
of the applicable Pass-Through Rate for each such Class. Accrued Certificate
Interest on the Class X-1 Certificates and the Class X-2 Certificates for each
Distribution Date will equal the aggregate Accrued Component Interest for the
related Interest Accrual Period for all of their respective Components for such
Distribution Date.
"ACCRUED COMPONENT INTEREST" means, with respect to each Component of
the Class X-1 Certificates and the Class X-2 Certificates for any Distribution
Date, one month's interest at the Class X-1 Strip Rate and the Class X-2 Strip
Rate, respectively, applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on a 30/360 basis and, with respect to any Component and any
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Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan, Loan Pair and
any Loan Group).
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor), (ii) Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify the
applicable Master Servicer, the Special Servicer, any applicable Non-Serviced
Mortgage Loan Master Servicer, any applicable Non-Serviced Mortgage Loan Special
Servicer, the Trustee, the Paying Agent, the Fiscal Agent (or any other Person)
pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid,
any federal, state, or local taxes imposed on the Trust or its assets and paid
from amounts on deposit in a Certificate Account or Distribution Account and (v)
to the extent not otherwise included in the calculation of a Realized Loss and
not covered by indemnification by one of the parties hereto or otherwise, any
other unanticipated cost, liability, or expense (or portion thereof) of the
Trust (including costs of collecting such amounts or other Additional Trust
Expenses) that the Trust has not recovered, and in the judgment of the
applicable Master Servicer (or Special Servicer, in the case of a Specially
Serviced Mortgage Loan) will not recover, from the related Mortgagor or
Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof; provided, however, that, in the case of
an A/B Mortgage Loan, "Additional Trust Expense" shall not include any of the
foregoing amounts that have been recovered from the related Mortgagor or
Mortgaged Property as a result of the subordination of the related B Note.
Notwithstanding anything to the contrary, "Additional Trust Expenses" shall not
include allocable overhead of a Master Servicer, the Special Servicer, any
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar or
the Fiscal Agent, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses, and similar internal
costs and expenses.
"ADMINISTRATIVE COST RATE" means, with respect to each Mortgage Loan,
the sum of the Servicer Report Administrator Fee Rate, the related Master
Servicing Fee Rate, the Excess Servicing Fee Rate, the Trustee Fee Rate and in
the case of any Non-Serviced Mortgage Loan, the related Pari Passu Loan
Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the applicable Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent on outstanding
Advances (other than Unliquidated Advances) pursuant to Section 4.5 of this
Agreement and any interest payable to
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any Non-Serviced Mortgage Loan Master Servicer or any Non-Serviced Mortgage Loan
Trustee with respect to Pari Passu Loan Nonrecoverable Advances pursuant to
Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE GRANTOR TRUST EVENT" means any action that, under the Code,
if taken or not taken, as the case may be, would either (i) endanger the status
of the Excess Interest Grantor Trust as a grantor trust or (ii) result in the
imposition of a tax upon the income the Excess Interest Grantor Trust or any of
its assets or transactions.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular Interests,
the REMIC II Regular Interests or the REMIC III Regular Interests, as the case
may be, at any date of determination. With respect to a Class of Principal
Balance Certificates, REMIC I Regular Interests, REMIC II Regular Interests or
REMIC III Regular Interests, Aggregate Certificate Balance shall mean the
aggregate of the Certificate Balances of all Certificates or Interests, as the
case may be, of that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to the ARD Loans, the
anticipated maturity date set forth in the related Mortgage Note.
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"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, B Note or
Loan Pair, not later than the earliest of (i) the date 120 days after the
occurrence of any delinquency in payment with respect to such Mortgage Loan, A/B
Mortgage Loan or Loan Pair if such delinquency remains uncured, (ii) the date 30
days after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or the related Mortgagor has become the subject of involuntary
bankruptcy proceedings or the related Mortgagor has consented to the filing of a
bankruptcy proceeding against it or a receiver is appointed in respect of the
related Mortgaged Property, provided such petition or appointment is still in
effect, (iii) the date that is 30 days following the date the related Mortgaged
Property becomes an REO Property and (iv) the effective date of any modification
to a Money Term of a Mortgage Loan, A/B Mortgage Loan or Loan Pair, other than
an extension of the date that a Balloon Payment is due for a period of less than
six months from the original due date of such Balloon Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan, A/B Mortgage Loan or Loan Pair (or, in
the case of an REO Property, the related REO Mortgage Loan) less the principal
amount of any guaranty or surety bond with a rating of at least "BBB-" (or its
equivalent) by a nationally recognized statistical rating organization and the
undrawn principal amount of any letter of credit or debt service reserve, if
applicable, that is then securing such Mortgage Loan, A/B Mortgage Loan or Loan
Pair, (ii) to the extent not previously advanced by the applicable Master
Servicer, the Trustee, or the Fiscal Agent, all accrued and unpaid interest on
such Mortgage Loan, A/B Mortgage Loan or Loan Pair at a per annum rate equal to
the Mortgage Rate, (iii) all unreimbursed Advances (including Unliquidated
Advances) and interest on Advances (other than Unliquidated Advances) at the
Advance Rate with respect to such Mortgage Loan or Loan Pair, and (iv) to the
extent funds on deposit in any applicable Escrow Accounts are not sufficient
therefor, and to the extent not previously advanced by the applicable Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents and other amounts which were required to be deposited
in any Escrow Account (but were not deposited) in respect of such Mortgaged
Property or REO Property, as the case may be, over (B) 90% of the Appraised
Value (net of any prior mortgage liens and subject to any downward adjustments
that the Special Servicer may make (without implying any obligation to do so)
based upon its review of the Appraisal or such other information that it deems
appropriate) of such Mortgaged Property or REO Property as determined by such
Appraisal or internal valuation, as the case may be, plus the full amount of any
escrows held by or on behalf of the Trustee as security for the Mortgage Loan,
A/B Mortgage Loan or a Loan Pair (less the estimated amount of the obligations
anticipated to be payable in the next twelve months to which such escrows
relate). Each Appraisal or internal valuation for a Required Appraisal Loan
shall be updated annually for so
-9-
long as an Appraisal Reduction exists. The Appraisal Reduction for each Required
Appraisal Loan will be recalculated based on subsequent Appraisals, internal
valuations or updates. Any Appraisal Reduction for any Mortgage Loan, A/B
Mortgage Loan or Loan Pair shall be reduced to reflect any Realized Principal
Losses on the Required Appraisal Loan or Loan Pair. Each Appraisal Reduction
will be reduced to zero as of the date the related Mortgage Loan, A/B Mortgage
Loan or Loan Pair is brought current under the then current terms of the
Mortgage Loan, A/B Mortgage Loan or Loan Pair for at least three consecutive
months, and no Appraisal Reduction will exist as to any Mortgage Loan, A/B
Mortgage Loan or Loan Pair after it has been paid in full, liquidated,
repurchased or otherwise disposed of. Any Appraisal Reduction in respect of any
Non-Serviced Mortgage Loan shall be calculated in accordance with the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement based upon the
applicable allocation thereunder of the items set forth in clauses (A) and (B)
above between the Non-Serviced Mortgage Loans and the related Non-Serviced
Companion Mortgage Loans and all other related pari passu loans. Any Appraisal
Reduction in respect of any Loan Pair shall be allocated, as between a Serviced
Pari Passu Mortgage Loan and the related Serviced Companion Mortgage Loan, pro
rata according to their respective Principal Balances. Any Appraisal Reduction
with respect to an A/B Mortgage Loan shall be calculated in respect of such A/B
Mortgage Loan taken as a whole and any such Appraisal Reduction shall be
allocated first to the related B Note, up to the Principal Balance thereof, and
any excess shall be allocated to the related A Note. For purposes of P&I
Advances and reporting in connection with any Distribution Date, the applicable
Master Servicer shall not be required to take account of any downward
adjustment(s) made by the Special Servicer as contemplated by clause (B) above
if the applicable Master Servicer has not received notice of such downward
adjustment(s) before the end of the Collection Period related to such
Distribution Date.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to a Non-Serviced Mortgage Loan),
the appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
applicable Master Servicer or the Special Servicer, as applicable or, in the
case of an internal valuation performed by the Special Servicer pursuant to
Section 6.9, the value of the Mortgaged Property determined by such internal
valuation and (ii) with respect to the Mortgaged Property relating to a
Non-Serviced Mortgage Loan, the portion of the appraised value allocable
thereto.
"ARD LOAN" means any Mortgage Loan designated as such on the Mortgage
Loan Schedule.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the
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Trustee, which assignment, notice of transfer or equivalent instrument may be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan or any B Note as to which advancing is required hereunder for its
Maturity Date (provided that such Mortgage Loan or B Note has not been paid in
full, and no Final Recovery Determination or other sale or liquidation has
occurred in respect thereof, on or before the end of the Collection Period in
which such Maturity Date occurs) and for any subsequent Due Date therefor as of
which such Mortgage Loan or such B Note remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
or such B Note on such Due Date, if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule in effect immediately prior to, and without regard to
the occurrence of, its most recent Maturity Date (as such may have been extended
in connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan or such B
Note granted or agreed to by the applicable Master Servicer or the Special
Servicer pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan or B Note
described in the preceding clause of this definition, the Assumed Scheduled
Payment) that was due in respect of the related Mortgage Loan or the related B
Note on the last Due Date prior to its becoming an REO Mortgage Loan. The amount
of the Assumed Scheduled Payment for any A Note or B Note shall be calculated
solely by reference to the terms of such A Note or B Note, as applicable (as
modified in connection with any bankruptcy or similar proceeding involving the
related Mortgagor or pursuant to a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the applicable Master Servicer or the
Special Servicer pursuant to the terms hereof) and without regard to the
remittance provisions of the related Intercreditor Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving in such
capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth in
Section 4.6(a).
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received by the Master
Servicers or the Special Servicer through the end of the related Collection
Period
-11-
exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the applicable
Master Servicer in respect of unpaid Master Servicing Fees, the Special Servicer
in respect of unpaid Special Servicer Compensation, the Trustee in respect of
unpaid Trustee Fees, the Paying Agent in respect of unpaid Paying Agent Fees or
to the parties entitled thereto in respect of the unpaid Excess Servicing Fees),
(iii) amounts that constitute Prepayment Premiums, (iv) if such Distribution
Date occurs during January, other than in a leap year, or February of any year,
the Interest Reserve Amounts with respect to Interest Reserve Loans deposited in
the Interest Reserve Account, (v) in the case of each REO Property related to an
A/B Mortgage Loan or Loan Pair, all amounts received with respect to such A/B
Mortgage Loan or Loan Pair that are required to be paid to the holder of the
related B Note or Serviced Companion Mortgage Loan, as applicable, pursuant to
the terms of the related B Note or Serviced Companion Mortgage Loan, as
applicable, and the related Intercreditor Agreement or Loan Pair Intercreditor
Agreement (which amounts will be deposited into the related A/B Loan Custodial
Account or Serviced Companion Mortgage Loan Custodial Account, as applicable,
pursuant to Section 5.1(c) and withdrawn from such accounts pursuant to Section
5.2(a)) and (vi) Scheduled Payments collected but due on a Due Date subsequent
to the related Collection Period and (b) if and to the extent not already among
the amounts described in clause (a), (i) the aggregate amount of any P&I
Advances made by the applicable Master Servicer, the Trustee or the Fiscal Agent
for such Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the
aggregate amount of any Compensating Interest payments made by a Master Servicer
for such Distribution Date pursuant to the terms hereof, and (iii) if such
Distribution Date occurs in March of any year, commencing March 2006, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve Account in respect of each Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
Intercreditor Agreement.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a remaining principal balance equal to or greater than
5% of its original principal balance as of its stated maturity date, unless
prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any
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Class of Certificates, a fraction (A) whose numerator is the greater of (x) zero
and (y) the difference between (i) the Pass-Through Rate on that Class of
Certificates and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to the Principal Prepayment (or the current Discount Rate
if not used in such calculation) and (B) whose denominator is the difference
between (i) the Mortgage Rate on the related Mortgage Loan and (ii) the Discount
Rate used in calculating the Prepayment Premium with respect to that Principal
Prepayment (or the current Discount Rate if not used in such calculation),
provided, however, that under no circumstances will the Base Interest Fraction
be greater than one. If the Discount Rate referred to above is greater than the
Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction will
equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Paying Agent and each Master Servicer to the effect that any proposed transfer
will not (i) cause the assets of the Trust to be regarded as plan assets for
purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty
on the part of the Depositor, the applicable Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar or the Fiscal
Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, San Francisco,
California or the principal cities in which the Special Servicer, the Trustee,
the Paying Agent or any Master Servicer conducts servicing or trust operations,
or (iii) a day on which banking institutions or savings associations in
Minneapolis, Minnesota, Columbia, Maryland, New York, New York, Chicago,
Illinois or San Francisco, California are authorized or obligated by law or
executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the sale of such Defaulted Mortgage Loan. Each Master Servicer shall
maintain records in accordance with the Servicing Standard (and, in the case of
Specially Serviced Mortgage Loans, based on the written reports with respect to
such Cash Liquidation delivered by the Special Servicer to the applicable Master
Servicer), of each applicable Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the applicable Master Servicer (or any Sub-Servicer on behalf
of the applicable Master Servicer) pursuant to Section 5.1(a), each of which
shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate (other
than the Class T Certificates, the Class X Certificates and the Residual
Certificates) or Interest as of any
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Distribution Date, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (in the case
of a Certificate), or as ascribed thereto herein (in the case of an Interest),
minus (A)(i) the amount of all principal distributions previously made with
respect to such Certificate pursuant to Section 6.5(a) or deemed to have been
made with respect to such Interest pursuant to Section 6.2(a) or Section 6.3(a),
as the case may be, (ii) all Realized Losses allocated or deemed to have been
allocated to such Interest or Certificate in reduction of Certificate Balance
pursuant to Section 6.6, and plus (B) an amount equal to the amounts identified
in clause (I)(C) of the definition of Principal Distribution Amount with respect
to such Distribution Date, such increases to be allocated to the Principal
Balance Certificates or Interests in sequential order (i.e. to the most senior
Class first), in each case up to the amount of Realized Losses previously
allocated thereto and not otherwise reimbursed hereunder. The Certificate
Balance of each Component shall equal the Certificate Balance of the
Corresponding REMIC II Regular Interest.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning set forth in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning set forth in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class T Certificates, the Class R-I Certificates and the Class R-II
Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in Section 8.26(b).
"CERTIFYING PERSON" has the meaning set forth in Section 8.26(b).
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests, REMIC III Certificates, or Components, any Class of such
Certificates, Interests or Components.
"CLASS A-1 CERTIFICATES," "CLASS A-1A CERTIFICATES," "CLASS A-2A
CERTIFICATES," "CLASS A-2B CERTIFICATES," "CLASS A-AB CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS A-4A CERTIFICATES," "CLASS A-4B CERTIFICATES," "CLASS A-J
CERTIFICATES," "CLASS X-1 CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K Certificates," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O
CERTIFICATES," "CLASS P CERTIFICATES," "CLASS Q CERTIFICATES," "CLASS S
CERTIFICATES," "CLASS T CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II
CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the Certificates designated as
"Class A-1," "Class A-1A," "Class X-0X,"
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"Xxxxx X-0X," "Class A-AB," "Class A-3," "Class A-4A," "Class X-0X," "Xxxxx
X-X," "Class X-1," "Class X-2," "Class B," "Class C," "Class D," "Class E,"
"Class F," "Class G," "Class H," "Class J," "Class K," "Class L," "Class M,"
"Class N," "Class O," "Class P," "Class Q," "Class S," "Class T," "Class R-I,"
"Class R-II" and "Class R-III" respectively, on the face thereof, in
substantially the form attached hereto as Exhibits.
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, Class
A-1A Certificates, the Class A-2 Certificates, the Class A-AB Certificates, the
Class A-3 Certificates, and the Class A-4 Certificates.
"CLASS A-1-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1-1.
"CLASS A-1-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1-2.
"CLASS A-1-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1-3.
"CLASS A-1A-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-1.
"CLASS A-1A-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-2.
"CLASS A-1A-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-3.
"CLASS A-1A-4 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-4.
"CLASS A-1A-5 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-5.
"CLASS A-1A-6 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-6.
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"CLASS A-1A-7 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-7.
"CLASS A-1A-8 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-8.
"CLASS A-1A-9 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-9.
"CLASS A-2 CERTIFICATES" means the Class A-2A Certificates and the
Class A-2B Certificates, collectively.
"CLASS A-2A-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A-1.
"CLASS A-2A-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A-2.
"CLASS A-2A-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A-3.
"CLASS A-2B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2B.
"CLASS A-AB COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-AB Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-AB.
"CLASS A-3 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-3 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-3.
"CLASS A-4 CERTIFICATES" means the Class A-4A Certificates and the
Class A-4B Certificates, collectively.
"CLASS A-4A-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-1.
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"CLASS A-4A-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-2.
"CLASS A-4A-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-3.
"CLASS A-4A-4 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-4.
"CLASS A-4A-5 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-5.
"CLASS A-4B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-4B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-4B.
"CLASS A-J COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-J.
"CLASS B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest B.
"CLASS C COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest C.
"CLASS D-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest D-1.
"CLASS D-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest D-2.
"CLASS E-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest E-1.
"CLASS E-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest E-2.
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"CLASS F-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest F-1.
"CLASS F-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest F-2.
"CLASS G COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest G.
"CLASS H-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class H Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest H-1.
"CLASS H-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class H Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest H-2.
"CLASS J-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest J-1.
"CLASS J-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest J-2.
"CLASS K-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest K-1.
"CLASS K-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest K-2.
"CLASS L COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest L.
"CLASS M COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest M.
"CLASS N COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest N.
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"CLASS O COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest O.
"CLASS P COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest P.
"CLASS Q COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class Q Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest Q.
"CLASS S COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class S Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest S.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the Principal Balance
Certificates as of the close of business on the preceding Distribution Date.
"CLASS X-1 STRIP RATE" means, with respect to any Class of Components
(other than Components that are also Class X-2 Components) for any Distribution
Date, a rate per annum equal to (i) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, minus (ii) the Pass-Through Rate for the
Corresponding Certificates. In the case of any Class of Components that are also
Class X-2 Components, (i) for any Distribution Date occurring on or before the
related Class X-2 Component Crossover Date, a rate per annum equal to, (x) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, minus (y)
the greater of (1) the rate per annum corresponding to such Distribution Date as
set forth in Schedule IX attached hereto and (2) the Pass Through Rate for the
Class of Corresponding Certificates, and (ii) for any Distribution Date
occurring after the related Class X-2 Component Crossover Date, a rate per annum
equal to (x) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class X-1 Strip Rate be less
than zero).
"CLASS X-2 COMPONENT CROSSOVER DATE" means, (i) with respect to the
Class A-1-2 Component and Class A-1A-2 Component, the Distribution Date
occurring in August 2006; (ii) with respect to the Class A-1-3 Component, Class
A-1A-3 Component, Class A-2A-1 Component, Class K-1 Component, Class L
Component, Class M Component and Class N Component, the Distribution Date
occurring in August 2007; (iii) with respect to the Class A-1A-4 Component,
Class A-2A-2 Component, Class J-1 Component and Class K-2 Component, the
Distribution Date occurring in August 2008; (iv) with respect to the Class
A-1A-5 Component, Class A-2A-3 Component, Class A-2B Component, Class A-3
Component, Class A-AB Component, Class A-4A-1 Component, Class H-1 Component and
Class J-2 Component, the Distribution Date occurring in August 2009; (v) with
respect to the Class A-1A-6
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Component, Class A-4A-2 Component, Class F-1 Component, Class G Component and
Class H-2 Component, the Distribution Date occurring in August 2010; (vi) with
respect to the Class A-1A-7 Component, Class A-4A-3 Component, Class E-1
Component and Class F-2 Component, the Distribution Date occurring in August
2011; (vii) with respect to the Class A-1A-8 Component, Class A-4A-4 Component,
Class D-1 Component and Class E-2 Component, the Distribution Date occurring in
August 2012; (viii) with respect to the Class A-1A-9 Component, Class A-4A-5
Component, Class A-4B Component, Class A-J Component, Class B Component, Class C
Component and Class D-2 Component, the Distribution Date occurring in August
2013.
"CLASS X-2 COMPONENTS" means each of the Class A-1-2 Component, Class
A-1-3 Component, Class A-1A-2 Component, Class A-1A-3 Component, Class A-1A-4
Component, Class A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7
Component, Class A-1A-8 Component, Class A-1A-9 Component, Class A-2A-1
Component, Class A-2A-2 Component, Class A-2A-3 Component, Class A-2B Component,
Class A-3 Component, Class A-AB Component, Class A-4A-1 Component, Class A-4A-2
Component, Class A-4A-3 Component, Class A-4A-4 Component, Class A-4A-5
Component, Class A-4B Component, Class A-J Component, Class B Component, Class C
Component, Class D-1 Component, Class D-2 Component, Class E-1 Component, Class
E-2 Component, Class F-1 Component, Class F-2 Component, Class G Component,
Class H-1 Component, Class H-2 Component, Class J-1 Component, Class J-2
Component, Class K-1 Component, Class K-2 Component, Class L Component, Class M
Component and Class N Component, in each case, only as of any date of
determination on or prior to its respective Class X-2 Component Crossover Date.
"CLASS X-2 NOTIONAL AMOUNT" means as of any date of determination, the
sum of the then Component Notional Amounts of the Class X-2 Components that have
not passed their respective Class X-2 Component Crossover Dates.
"CLASS X-2 STRIP RATE" means, with respect to each of the Class X-2
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class X-2 Component
Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule IX attached
hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass Through Rate for the Class of Corresponding
Certificates (provided that, in no event shall any Class X-2 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
X-2 Component Crossover Date, 0% per annum.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means August 11, 2005.
"CMSA" means the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees,
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certificateholders, issuers, the placement agent and underwriters generally
involved in the commercial mortgage loan securitization industry, which is the
principal such association or organization in the commercial mortgage loan
securitization industry and whose principal purpose is the establishment of
industry standards for reporting transaction-specific information relating to
commercial mortgage pass-through certificates and commercial mortgage-backed
bonds and the commercial mortgage loans and foreclosed properties underlying or
backing them to investors holding or owning such certificates or bonds, and any
successor to such other association or organization. If an organization or
association described in one of the preceding sentences of this definition does
not exist, "CMSA" shall be deemed to refer to such other association or
organization as shall be selected by the Master Servicers and reasonably
acceptable to the Trustee, the Paying Agent, the Special Servicer and the
majority certificateholder of the Controlling Class.
"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"COMMISSION" has the meaning set forth in Section 8.26(a).
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the lesser of (A) the excess of (i) Prepayment Interest
Shortfalls incurred in respect of the Mortgage Loans serviced by the applicable
Master Servicer other than the Specially Serviced Mortgage Loans resulting from
(x) voluntary Principal Prepayments on such Mortgage Loans serviced by such
applicable Master Servicer (but not including any B Note, Non-Serviced Companion
Mortgage Loan or Serviced Companion Mortgage Loan) or (y) to the extent that the
applicable Master Servicer did not apply the proceeds thereof in accordance with
the terms of the related Mortgage Loan documents or enforce such terms,
involuntary Principal Prepayments during the related Collection Period over (ii)
the aggregate of Prepayment Interest Excesses resulting from Principal
Prepayments on the Mortgage Loans (but not including any B Note, Non-Serviced
Companion Mortgage Loan or Serviced Companion Mortgage Loan) during the same
Collection Period and (B) the aggregate of the portion of the aggregate Master
Servicing Fee accrued by the applicable Master Servicer at a rate per annum
equal to 2 basis points for the related Collection Period calculated in respect
of all the Mortgage Loans (including REO Mortgage Loans but not including any B
Note, Non-Serviced Companion Mortgage Loan
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or Serviced Companion Mortgage Loan); provided, however that if a Prepayment
Interest Shortfall on a Mortgage Loan (but not including any B Note,
Non-Serviced Companion Mortgage Loan or Serviced Companion Mortgage Loan)
results due to the applicable Master Servicer's failure to enforce the terms of
the applicable Mortgage Loan documents, the 2 basis point limitation shall not
be applicable with respect to such Mortgage Loan and in such event, the amount
specified in clause (B) above shall also include any investment income earned on
the amount prepaid with respect to such Mortgage Loan prior to such Distribution
Date.
"COMPONENT" means any of the Class A-1-1 Component, the Class A-1-2
Component, the Class A-1-3 Component, the Class A-1A-1 Component, the Class
A-1A-2 Component, the Class A-1A-3 Component, the Class A-1A-4 Component, the
Class A-1A-5 Component, the Class A-1A-6 Component, the Class A-1A-7 Component,
the Class A-1A-8 Component, the Class A-1A-9 Component, the Class A-2A-1
Component, the Class A-2A-2 Component, the Class A-2A-3 Component, the Class
A-2B Component, the Class A-AB Component, the Class A-3 Component, Class A-4A-1
Component, the Class A-4A-2 Component, the Class A-4A-3 Component, the Class
A-4A-4 Component, the Class A-4A-5 Component, the Class A-4B Component, the
Class A-J Component, the Class B Component, the Class C Component, the Class D-1
Component, the Class D-2 Component, the Class E-1 Component, the Class E-2
Component, the Class F-1 Component, the Class F-2 Component, the Class G
Component, the Class H-1 Component, the Class H-2 Component, the Class J-1
Component, the Class J-2 Component, the Class K-1 Component, the Class K-2
Component, the Class L Component, the Class M Component. the Class N Component,
the Class O Component, the Class P Component, the Class Q Component and the
Class S Component.
"COMPONENT NOTIONAL AMOUNT" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental authority, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan and (if applicable)
its related B Note or Serviced Companion Mortgage Loan. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Condemnation
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage or A Note, as applicable, shall be included
in Condemnation Proceeds.
"CONTROLLING CLASS" means the most subordinate Class of REMIC Regular
Certificates outstanding at any time of determination; provided, that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular
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Certificates outstanding. As of the Closing Date, the Controlling Class will be
the Class S Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"CORONADO CENTER B NOTE" means, with respect to the Coronado Center
Mortgage Loan, the related subordinated Mortgage Note, which is not included in
the Trust and which is subordinated in right of payment to the Coronado Center
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
The Coronado Center B Note is not a Mortgage Loan.
"CORONADO CENTER LOAN GROUP" means the Coronado Center Mortgage Loan
and the Coronado Center B Note.
"CORONADO CENTER MORTGAGE" means the Mortgage securing the Coronado
Center Loan Group.
"CORONADO CENTER MORTGAGE LOAN" means the mortgage loan designated as
Mortgage Loan No. 165, which is secured on a senior basis with the Coronado
Center B Note pursuant to the Coronado Center Mortgage. The Coronado Center
Mortgage Loan is a Mortgage Loan.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention: Global Securities and Trust Services Group--
Xxxxxx Xxxxxxx Capital I Inc. Series 2005-HQ6 and the office of the Certificate
Registrar is presently located for certificate transfer purposes at Xxxxx Fargo
Center, Sixth and Marquette Avenue, MAC #N9303 000, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Corporate Trust Services Group Xxxxxx Xxxxxxx Corporate
Capital I Inc. Series 2005-HQ6, and for all other purposes at 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Series 2005-HQ6, or at such other address as the
Trustee or Certificate Registrar may designate from time to time by notice to
the Certificateholders, the Depositor, the Master Servicers, the Paying Agent
and the Special Servicer.
"CORRESPONDING CERTIFICATE" means the Class of Certificates as set
forth in the Preliminary Statement with respect to any Corresponding Component
or any Corresponding REMIC II Regular Interest.
"CORRESPONDING COMPONENT" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding REMIC II Regular Interest.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan the REMIC I Regular Interest having an initial Certificate Balance
equal to the
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Principal Balance of such Mortgage Loan outstanding as of the Cut-Off Date,
after taking into account all principal and interest payments made or due prior
to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component.
"COUNTY LINE COMMERCE CENTER B NOTE" means, with respect to the County
Line Commerce Center Mortgage Loan, the related subordinate note, which is not
included in the Trust and which is subordinated in right of payment to the
County Line Commerce Center Mortgage Loan to the extent set forth in the related
Intercreditor Agreement. The County Line Commerce Center B Note is not a
Mortgage Loan.
"COUNTY LINE COMMERCE CENTER LOAN GROUP" means the County Line
Commerce Center Mortgage Loan and the County Line Commerce Center B Note.
"COUNTY LINE COMMERCE CENTER MORTGAGE" means the Mortgage securing the
County Line Commerce Center Loan Group.
"COUNTY LINE COMMERCE CENTER MORTGAGE LOAN" means the mortgage loan
designated as Mortgage Loan No. 181, which is secured on a senior basis with the
County Line Commerce Center B Note pursuant to the County Line Commerce Center
Mortgage. The County Line Commerce Center Mortgage Loan is a Mortgage Loan.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"CROSSROADS CENTER MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan Nos. 444 on the Mortgage Loan Schedule.
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on August 1, 2005. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on August 1, 2005, and
Scheduled Payments due in August 2005 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on August 1,
2005, not the actual day on which such Scheduled Payments were due.
"DBRS" means Dominion Bond Rating Service, Inc. or its successor in
interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T.
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"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Serviced Companion
Mortgage Loan that is in default under the terms of the applicable Mortgage Loan
documentation and for which any applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the government securities (as defined in Section 2(a)(16) of the Investment
Company Act of 1940) required to be pledged in lieu of prepayment pursuant to
the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan, Serviced Companion Mortgage
Loan or B Note which requires or permits the related Mortgagor (or permits the
holder of such Mortgage Loan, Serviced Companion Mortgage Loan or B Note to
require the related Mortgagor) to pledge Defeasance Collateral to such holder in
lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan (other
than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Mortgage Loan or
any Loan Pair, a valuation by a court of competent jurisdiction of the Mortgaged
Property (or, with respect to a Non-Serviced Mortgage Loan or a Serviced Pari
Passu Mortgage Loan, the pro rata portion of the valuation allocable to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan, as applicable)
relating to such Mortgage Loan, A/B Mortgage Loan or Loan Pair in an amount less
than the then outstanding indebtedness under such Mortgage Loan, A/B Mortgage
Loan or Loan Pair, which valuation results from a proceeding initiated under the
United States Bankruptcy Code, as amended from time to time, and that reduces
the amount the Mortgagor is required to pay under such Mortgage Loan, A/B
Mortgage Loan or Loan Pair.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B
Mortgage Loan or any Loan Pair, the amount by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as applicable, under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable.
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"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated the
Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
earlier of (i) the 8th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day,
and (ii) the 4th Business Day prior to the related Distribution Date, commencing
in September 2005.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicers will select a comparable publication to
determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
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foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by a Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class (or in the case of Classes A-2A and A-2B, such
Classes collectively or individually as the context may require or in the case
of Classes A-4A and A-4B, such Classes collectively or individually as the
context may require) of Certificates (other than the Residual Certificates) or
Interests, the sum of (A) Accrued Certificate Interest in respect of such Class
or Classes or Interest, reduced (to not less than zero) by (i) any Net Aggregate
Prepayment Interest Shortfalls for such Class or Classes of Certificates or
Interests, allocated on such Distribution Date to such Class or Classes or
Interest pursuant to Section 6.7, and (ii) Realized Losses allocated on such
Distribution Date to reduce the Distributable Certificate Interest payable to
such Class or Classes or Interest pursuant to Section 6.6, plus (B) the Unpaid
Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 13th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing September
13, 2005.
"DUE DATE" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled Payment is
due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "A-1" by S&P, "F-1" by Fitch, if the deposits are to
be held in the account for 30 days or less, and "R-1(middle)" by DBRS or, if not
rated by DBRS, an equivalent rating such as those listed above by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x), in the case of accounts in which funds are held for 30
days or less or (B) long-term unsecured debt obligations are rated at least
"AA-" by S&P (or "A" (without regard to any plus or minus), if the short-term
unsecured debt obligations are rated at least "A-1"), at least "AA-" by Fitch,
if the deposits are to be held in the account more than 30 days, and at least
"AA(low)" by DBRS (or if not rated by DBRS, an equivalent rating (such as those
listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x)),
or (ii) a segregated trust account or accounts maintained in the
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trust department of the Trustee or other financial institution having a combined
capital and surplus of at least $50,000,000 and subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an account or accounts of a depository
institution acceptable to each Rating Agency, as evidenced by Rating Agency
Confirmation with respect to the use of any such account as a Certificate
Account or the Distribution Account. Notwithstanding anything in the foregoing
to the contrary, an account shall not fail to be an Eligible Account solely
because it is maintained with Xxxxx Fargo Bank, National Association or Xxxxx
Fargo Bank Iowa, N.A., each a wholly-owned subsidiary of Xxxxx Fargo & Co.,
provided that such subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "A-1" in
the case of S&P, "F-1" in the case of Fitch and "R-1(middle)" in the case of
DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed above
for Fitch and S&P) by at least two nationally recognized statistical rating
organizations), if the deposits are to be held in the account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at least "AA-" (or
"A" (without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") in the case of S&P, at least "A+" in the
case of Fitch, and at least "AA(low)" in the case of DBRS (or, if not rated by
DBRS, an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations), if the
deposits are to be held in the account for more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicers, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicers, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "F-1" by Fitch, "A-1" by S&P and "R-1(middle)" by DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations) or the long-term unsecured debt obligations of such depository
institution or trust company have been assigned a rating by each Rating Agency
at least equal "AA" by Fitch, "AA-" by S&P or its equivalent and "AA(low)" by
DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed above
for Fitch and S&P) by at least two nationally recognized statistical rating
organizations) or, in each case, if not rated by a Rating Agency, then such
Rating Agency has issued a Rating Agency Confirmation;
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(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from a
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in a Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in a Certificate Account;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"F-1" by Fitch and "A-1" by S&P and "R-1(middle)" by DBRS (and, if not rated by
DBRS, an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations) (or for which
Rating Agency Confirmation is obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
that are rated in highest long-term category by Fitch, or if not rated by Fitch,
then Fitch has issued a Rating Agency Confirmation, "AAAm" by S&P and "AAA" by
DBRS, or if not rated by DBRS, an equivalent rating (such as those listed above
for Fitch and S&P) by at least two nationally recognized statistical rating
organizations;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" by Fitch, "AA-" by S&P, or
for which Rating Agency Confirmation is obtained with respect to such ratings
and "AA(low)" by DBRS (or, if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations);
(viii) any money market funds (including those managed or advised
by the Paying Agent or its affiliates) that maintain a constant asset value and
that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by S&P, "AAA" (or
its equivalent rating) by Fitch, and "AAA" (or its equivalent) by DBRS (and, if
not rated by DBRS, an equivalent rating by at least two nationally recognized
statistical rating organizations) and any other demand, money-market or time
deposit, or any other obligation, security or investment, with respect to which
Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the
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Paying Agent by the applicable Master Servicer at such Master Servicer's
expense), as are acceptable to the Rating Agencies (as evidenced by Rating
Agency Confirmation) and treated as "permitted investments" that are "cash flow
investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicers but not yet deposited in the applicable
Certificate Account) may be invested in investments treated as equity interests
for Federal income tax purposes. No Eligible Investments shall be purchased at a
price in excess of par. For the purpose of this definition, units of investment
funds (including money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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"ESCROW ACCOUNT" means an account established by or on behalf of a
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums, ground lease payments, reserves for
capital improvements, deferred maintenance, repairs, tenant improvements,
leasing commissions, rental achievements, environmental matters and other
reserves or comparable items.
"EUROCLEAR BANK" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan held by the Trust
if an ARD Loan is not prepaid in full on or before its Anticipated Repayment
Date, the excess, if any of (i) interest accrued at the rate of interest
applicable to such Mortgage Loan after such Anticipated Repayment Date (plus any
interest on such interest as may be provided for under the related Mortgage Loan
documents) over (ii) interest accrued at the rate of interest applicable to such
Mortgage Loan before such Anticipated Repayment Date. Excess Interest on an ARD
Loan held by the Trust is an asset of the Trust, but shall not be an asset of
any REMIC Pool formed hereunder.
"EXCESS INTEREST GRANTOR TRUST" means that portion of the Trust that
evidences beneficial ownership of the Excess Interest and the Excess Interest
Sub-account, as described in Section 12.5(a) hereof.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account deemed
to be a sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note, or, in
the case of an REO Property related to a Loan Pair, a Principal Prepayment in
full had been made with respect to both the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan) on the date such proceeds were
received, including, without duplication, accrued and unpaid interest with
respect to such Mortgage Loan and any and all expenses (including Additional
Trust Expenses and Unliquidated Advances) with respect to such Mortgage Loan.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans or
the Serviced Companion Mortgage Loans for which an "excess servicing fee rate"
is designated on the Mortgage Loan Schedule, the monthly fee payable to Xxxxx
Fargo Bank, National Association or Prudential Asset Resources, Inc., as
applicable, or their related successors and assigns as holder of excess
servicing rights, which fee shall accrue on the Scheduled Principal
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Balance of each such Mortgage Loan or Serviced Companion Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). The holder of excess servicing rights is entitled
to Excess Servicing Fees only with respect to the Mortgage Loans or Serviced
Companion Mortgage Loans as indicated on Exhibit J hereto.
"EXCHANGE CERTIFICATION" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global Certificate, as
applicable.
"EXEMPTION" means each of the individual prohibited transaction
exemptions relating to pass-through certificates and the operation of asset pool
investment trusts granted by the United States Department of Labor to the
Underwriters, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in Section
2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note or Serviced Companion Mortgage Loan by a Master
Servicer in consultation with the Operating Adviser, or by the Special Servicer
in the case of a Specially Serviced Mortgage Loan (including a Mortgage Loan, a
Serviced Companion Mortgage Loan or a B Note that became an REO Property), in
each case, in its good faith discretion, consistent with the Servicing Standard,
that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
Purchase Proceeds and other payments or recoveries that the applicable Master
Servicer or the Special Servicer, as the case may be, expects to be finally
recoverable on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note,
without regard to any obligation of the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, to make payments
from its own funds pursuant to Article IV hereof, have been recovered. The
Special Servicer shall be required to provide the applicable Master Servicer
with prompt written notice of any Final Recovery Determination with respect to
any Specially Serviced Mortgage Loan upon making such determination. The
applicable Master
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Servicer shall notify the Trustee and the Paying Agent of such determination and
the Paying Agent shall deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that ARD Loans are assumed to be repaid on their Anticipated Repayment Dates.
"FINANCIAL MARKET PUBLISHERS" means Xxxxx, LLC and Intex Solutions,
Inc., or any successor entities thereof.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section
7.19.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"FRIS CHKN PORTFOLIO B NOTE" means, with respect to the FRIS Chkn
Portfolio Pari Passu Loan, the FRIS Chkn Portfolio B Note, which is a
subordinated mortgage note that is not included in the Trust. The FRIS Chkn
Portfolio B Note is not a Mortgage Loan.
"FRIS CHKN PORTFOLIO COMPANION LOAN" means the loan that is secured by
the FRIS Chkn Portfolio Pari Passu Mortgage on a pari passu basis with the FRIS
Chkn Portfolio Pari Passu Loan. The FRIS Chkn Portfolio Companion Loan is not a
Mortgage Loan.
"FRIS CHKN PORTFOLIO LOAN GROUP" means, collectively, the FRIS Chkn
Portfolio Pari Passu Loan, the FRIS Chkn Portfolio Companion Loan and the FRIS
Chkn Portfolio B Note.
"FRIS CHKN PORTFOLIO PARI PASSU LOAN" means Mortgage Loan Nos.
182-373, which is secured on a pari passu basis with the FRIS Chkn Portfolio
Companion Loan pursuant to the FRIS Chkn Portfolio Pari Passu Mortgage.
"FRIS CHKN PORTFOLIO PARI PASSU MORTGAGE" means the mortgage securing
the FRIS Chkn Portfolio Pari Passu Loan, the FRIS Chkn Portfolio Companion Loan
and the FRIS Chkn Portfolio B Note.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
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"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the applicable Master Servicer (other than such Master Servicer,
but which may be an Affiliate of such Master Servicer), or (B) that is a
Specially Serviced Mortgage Loan, any Person designated by the Special Servicer
that would be an "independent contractor" with respect to a REMIC Pool within
the meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real
estate investment trust (except that the ownership test set forth in such
Section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of the Aggregate Certificate Balance or Notional Amount,
as the case may be, of any Class of the Certificates (other than the Class R-III
Certificates), a Percentage Interest of 35% or more in the Class R-III
Certificates or such other interest in any Class of the Certificates or of the
applicable REMIC Pool as is set forth in an Opinion of Counsel, which shall be
at no expense to the Trustee or the Trust) so long as such REMIC Pool does not
receive or derive any income from such Person and provided that the relationship
between such Person and such REMIC Pool is at arm's length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other Person
(including the applicable Master Servicer or the Special Servicer) upon receipt
by the Trustee of an Opinion of Counsel, which shall be at the expense of the
Person delivering such opinion to the Trustee, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INITIAL REVIEW PERIOD" has the meaning set forth in Section 9.4(d).
"INSPECTION REPORT" means the report delivered by a Master Servicer or
the Special Servicer, as the case may be, substantially in the form of Exhibit L
hereto.
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"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related Serviced Companion
Mortgage Loan, the related B Note or the Servicing Standard. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Insurance
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as applicable,
shall be included in Insurance Proceeds.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage Loan,
the related intercreditor agreement by and between the holder of the related A
Note and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note and B Note, as the same may be further
amended from time to time in accordance with the terms thereof.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Paying Agent pursuant to Section 5.3(a), which account shall
be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicers, the Special Servicer, the Depositor, the holder of any related Junior
Indebtedness (with respect to any particular Mortgage Loan), a holder of 50% or
more of the Controlling Class, the Operating Adviser, any Independent Contractor
engaged by a Master Servicer or the Special Servicer pursuant to this Agreement,
or any Person actually known to a Responsible Officer of the Trustee to be an
Affiliate of any of them.
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"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, all amounts received during any Collection
Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"LATE FEE" means a fee payable to the applicable Master Servicer or
the Special Servicer, as the case may be, to the extent actually collected from
the Mortgagor as provided in the related Mortgage Loan, Serviced Companion
Mortgage Loan or the related B Note in connection with a late payment made by
such Mortgagor. References in this Agreement to Late Fees and default interest
in respect of any Loan Pair or in respect of any Non-Serviced Mortgage Loan and
its related Non-Serviced Companion Mortgage Loan shall mean only the portion
thereof that is received by the Trust in accordance with the applicable Loan
Pair Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor
Agreement.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses in connection with a closing, brokerage commissions and conveyance
taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses
relating to the disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the
applicable Master Servicer or the Special Servicer, subject to Section 4.4 and
Section 4.6(e) hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and (y)
the Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property and any Condemnation Proceeds
and Insurance Proceeds received by the Trust (other than Liquidation Proceeds
received in connection with any Non-Serviced Mortgage Loan) for distribution to
the Certificateholders and the holders of any Serviced Companion Mortgage Loans
and B Notes; provided, however, that (i) in the case of a final disposition
consisting of the repurchase of a Mortgage Loan or REO Property by a Seller
pursuant to Section 2.3, such fee will only be paid by the applicable Seller if
repurchased after the date that is 180 days after such Seller receives notice of
the breach or defect causing the repurchase, (ii) in the case of an A/B Mortgage
Loan, such fee will not be payable if the holder of the related B Note exercises
its option to purchase the related A Note pursuant to the Intercreditor
Agreement; provided, that, this clause (ii) shall not be applicable if the
holder of the related B Note has exercised its right to cure three consecutive
monetary defaults under the related Intercreditor Agreement and a monetary
default occurs in the following month and (iii) in the case of a Mezzanine
Mortgage Loan, such fee will not be payable if the holder of the related
Mezzanine Loan exercises its option to purchase the related Mortgage Loan
pursuant to the related Mezzanine Mortgage Loan Intercreditor Agreement;
provided, that, to the extent permitted by the terms of the related Mezzanine
Mortgage Loan Intercreditor Agreement, this
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clause (iii) shall not be applicable if the holder of the related Mezzanine Loan
has exercised its right to cure three consecutive monetary defaults under the
Mezzanine Mortgage Loan Intercreditor Agreement and a monetary default occurs in
the following month or such purchase occurs more than 90 days after the Mortgage
Loan becomes a Specially Serviced Mortgage Loan. Notwithstanding the foregoing,
if the terms of the related Mezzanine Mortgage Loan Intercreditor Agreement
exclude under certain circumstances the payment of any liquidation fee (or
similar fee) when calculating the applicable purchase price pursuant to the
exercise of any such purchase option, then no Liquidation Fee will be payable
under this Agreement under such circumstances.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of
a Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note or related REO
Property (net of Liquidation Expenses) and with respect to the sale or
liquidation of any REO Property related to any Non-Serviced Mortgage Loan and
Non-Serviced Companion Mortgage Loan, any portion of such amounts allocable to
the related Non-Serviced Mortgage Loan.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance (as increased by an Unliquidated Advance with respect
to such Mortgage Loan) of the Mortgage Loan (or such deemed Principal Balance,
in the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or
REO Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses (including Additional Trust
Expenses, unpaid Servicing Advances and unpaid Advance Interest) incurred in
connection with such Mortgage Loan that have been paid or are payable or
reimbursable to any Person, other than amounts included in the definition of
Liquidation Expenses and amounts previously treated as Expense Losses
attributable to principal (and interest thereon) minus the sum of (i) REO Income
applied as recoveries of principal or interest on the related Mortgage Loan or
REO Property, and (ii) Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, Late Collections and all other amounts recovered from the related
Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred and which are not required under any
Intercreditor Agreement, any Loan Pair Intercreditor Agreement or Non-Serviced
Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any
holder of a B Note, a Serviced Companion Mortgage Loan or a Non-Serviced
Companion Mortgage Loan. REO Income received on an REO Property and Liquidation
Proceeds received on or in respect of a Mortgage Loan or REO Property shall be
applied first to reimburse the applicable Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, as applicable, to the extent that Section
5.2(a)(I) otherwise entitles such party to reimbursement, for any Nonrecoverable
Advance with respect to the related Mortgage Loan not otherwise reimbursed, and
then for all Workout-Delayed Reimbursement Amounts with respect to such related
Mortgage Loan (but not any such amount that has become Unliquidated Advances),
and any remaining REO Income and Liquidation Proceeds and any Condemnation
Proceeds and Insurance Proceeds shall be applied first against any Additional
Trust Expenses (to the extent not included in the definition of Liquidation
Expenses) for such Mortgage Loan, next as a recovery of any Nonrecoverable
Advance (and interest thereon) with respect to such Mortgage Loan previously
paid from principal collections pursuant to Section 5.2(a)(II), next to any
Unliquidated Advances with respect to such Mortgage Loan, next to the unpaid
interest on the Mortgage Loan, calculated as
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described in clause (B) above, and then against the Principal Balance of such
Mortgage Loan, calculated as described in clause (A) above.
"LOAN GROUP" means either Loan Group 1 or Loan Group 2, as the case
may be.
"LOAN GROUP PRINCIPAL DISTRIBUTION AMOUNT" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"LOAN GROUP 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"LOAN GROUP 1 MORTGAGE LOAN" means any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"LOAN GROUP 1 PRINCIPAL DISTRIBUTION AMOUNT" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"LOAN GROUP 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"LOAN GROUP 2 MORTGAGE LOAN" means any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"LOAN GROUP 2 PRINCIPAL DISTRIBUTION AMOUNT" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"LOAN PAIR" means a Serviced Pari Passu Mortgage Loan and the related
Serviced Companion Mortgage Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a Loan
Pair, the related intercreditor agreement by and between the holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced Companion
Mortgage Loan relating to the relative rights of such holders, as the same may
be further amended from time to time in accordance with the terms thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair, the
allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
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"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the applicable Master Servicer (or Sub-Servicer on
its behalf) pursuant to which a Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section 7.18.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means (a) Prudential Asset Resources, Inc. and its
permitted successors and assigns with respect to the PMCF Loans and (b) Xxxxx
Fargo Bank, National Association and its permitted successors and assigns with
respect to the MSMC Loans, the Xxxxx Fargo Loans and the SunTrust Loans. Any
reference herein to a "Master Servicer" hereunder shall, if such Master Servicer
is the one described by clause (a) of this definition, also be construed to
refer to the Servicer Report Administrator to the extent of the rights granted
to and obligations imposed on the Servicer Report Administrator under this
Agreement.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in Section
8.3(a).
"MASTER SERVICER INDEMNIFIED PARTIES" has the meaning set forth in
Section 8.25(a).
"MASTER SERVICER LOSSES" has the meaning set forth in Section 8.25(a).
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Servicer Report Administrator or a Master Servicer, as the case may be, and in
such media as may be agreed upon by the Master Servicers and the Paying Agent
containing such information regarding the Mortgage Loans as will permit the
Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report required to be delivered hereunder and containing such
additional information as the Master Servicers, the Paying Agent and the
Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means, with respect to the applicable Master
Servicer, for each calendar month, as to each Mortgage Loan, Serviced Companion
Mortgage Loan and B Note (including REO Mortgage Loans and Defeasance Loans) but
not as to any Non-Serviced Mortgage Loan (as to which there is no Master
Servicing Fee payable to the applicable Master Servicer under this Trust), an
amount equal to the Master Servicing Fee Rate applicable to such month
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan,
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Serviced Companion Mortgage Loan or B Note immediately before the Due Date
occurring in such month, subject to reduction in respect of Compensating
Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to the applicable
Master Servicer, with respect to each Mortgage Loan (other than any Non-Serviced
Mortgage Loan), Serviced Companion Mortgage Loan and B Note (including any
Mortgage Loan relating to an REO Property), the rate per annum specified as such
on the Mortgage Loan Schedule. With respect to a Non-Serviced Mortgage Loan, no
Master Servicing Fee Rate is charged by a Master Servicer, but the Pari Passu
Loan Servicing Fee Rate is charged by the applicable Non-Serviced Mortgage Loan
Master Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section
2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note as of any date of determination, the date on
which the last payment of principal is due and payable thereunder, after taking
into account all Principal Prepayments received and any Deficient Valuation,
Debt Service Reduction Amount or modification of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note occurring prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note or (ii) any grace
period permitted by such Mortgage Loan, B Note or Serviced Companion Mortgage
Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MEZZANINE MORTGAGE LOAN" means any Mortgage Loan serviced under this
Agreement that has additional subordinated mezzanine financing in place, which
Mezzanine Mortgage Loan is included in the Trust.
"MEZZANINE LOAN" means, with respect to any Mezzanine Mortgage Loan,
the related mezzanine financing which is not included in the Trust and is
subordinated in right of payment to the related Mezzanine Mortgage Loan to the
extent set forth in the related Mezzanine Mortgage Loan Intercreditor Agreement.
"MEZZANINE MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, with respect
to a Mezzanine Mortgage Loan, the related intercreditor agreement by and between
the holder of the related Mezzanine Mortgage Loan and the holder of the related
Mezzanine Loan relating to the relative rights of such holders of such Mezzanine
Mortgage Loan and Mezzanine Loan, as the same may be further amended from time
to time in accordance with the terms thereof.
"MODIFICATION FEE" means a fee, if any, (a) collected from a Mortgagor
by the applicable Master Servicer in connection with a modification of any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note other than a Specially Serviced Mortgage Loan or (b)
collected in connection with a modification by the Special Servicer of a
Specially Serviced Mortgage Loan.
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"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the applicable Master Servicer and (y) not recovered
from the Mortgagor or (iii) in the case of a modification of such Mortgage Loan
that reduces the Mortgage Rate thereof, the excess, on each Due Date, of the
amount of interest that would have accrued at a rate equal to the original
Mortgage Rate, over interest that actually accrued on such Mortgage Loan during
the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment frequency thereof or any provision thereof
requiring the payment of a prepayment premium, yield maintenance charge or
percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into a
Certificate Account, and (B) the aggregate amount of other revenues collected by
the Special Servicer with respect to each REO Property during the related
Collection Period and credited to a Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of the Master Servicing Fee, the Special Servicing Fee, the
Excess Servicing Fees and the fees paid to the applicable Non-Serviced Mortgage
Loan Master Servicer and the Non-Serviced Mortgage Loan Special Servicer solely
as such fees relate to the Non-Serviced Mortgage Loans; (xi) the amount of
Unpaid Interest and Realized Losses, if any, incurred with respect to the
Mortgage Loans, including a breakout by type of such Realized Losses; (xii) the
aggregate amount of Servicing Advances and the aggregate amount of P&I Advances
outstanding, each separately stated, that have been made by the applicable
Master
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Servicer, the Special Servicer, the Trustee and the Fiscal Agent and the
aggregate amount of Servicing Advances and P&I Advances made by the applicable
Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan
Special Servicer in respect of the Non-Serviced Mortgage Loans and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date (and in the case of the Non-Serviced Mortgage Loans, the
amount of any appraisal reductions effected under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement). In the case of information
furnished pursuant to subclauses (i), (ii) and (xi) above, the amounts shall be
expressed in the aggregate and as a dollar amount per $1,000 of original
principal amount of the Certificates for all Certificates of each applicable
Class.
"XXXXX'X" means Xxxxx'x Investors Services, Inc.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6, without recourse, representation or
warranty other than as set forth in the Mortgage Loan Purchase Agreement" or if
the original Mortgage Note is not included therein, then a lost note affidavit
and indemnity with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed) or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true
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copies of such modifications, consolidations and extensions certified by the
applicable Seller together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original modification, consolidation or extension agreement has been
dispatched or sent to the appropriate public recording official for recordation
or (B) in the case of an original modification, consolidation or extension
agreement that has been lost after recordation, a certification by the
appropriate county recording office where such document is recorded that such
copy is a true and complete copy of the original recorded modification,
consolidation or extension agreement, and the originals of all assumption
agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder of record in
blank or in favor of "LaSalle Bank National Association, as Trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ6;" provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no Assignment of Mortgage in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable Seller shall
take all actions as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm that it is shown as, the
owner of the related Mortgage on the record of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by the applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the Seller, a copy thereof certified by the
Seller or, if any original intervening assignment of Mortgage has not yet been
returned on or prior to the 45th day following the Closing Date from the
applicable recording office or has been lost, a true and correct copy thereof,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original intervening
assignment of Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the applicable Seller
to be a true and complete copy of the original Assignment of Leases submitted
for recording, together with (A) an original of each assignment of such
Assignment of Leases with evidence of recording thereon and showing a complete
recorded chain of assignment from the named assignee to the holder of record,
and if any such assignment of such Assignment of Leases has not been returned
from the applicable public recording office, a copy of such assignment certified
by the applicable Seller to be a true and complete copy of the original
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assignment submitted for recording, and (B) an original assignment of such
Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6,"
which assignment may be effected in the related Assignment of Mortgage;
provided, if the related Assignment of Leases has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of the
Trustee will be required to be recorded or delivered and instead, the applicable
Seller shall take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Assignment of Leases on the record of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee duly
authorized and executed and delivered in connection with the Mortgage Loan;
provided, if the related Mortgage has been recorded in the name of MERS or its
designee, no such UCC-2 or UCC-3 financing statements will be required to be
recorded or delivered and instead, the applicable Seller shall take all actions
as are necessary to cause the Trustee to be shown as, and the Trustee shall take
all actions necessary to confirm that it is shown as, the owner of the related
UCC financing statements on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related Serviced Companion Mortgage Loan and B
Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the applicable Master Servicer, and applied, drawn, reduced or released
in accordance with documents evidencing or securing the applicable Mortgage Loan
and this Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the applicable Master Servicer on behalf of the Trustee, with a copy to be
held by the Trustee, and applied,
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drawn, reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan and this Agreement (it being understood that each
Seller has agreed (a) that the proceeds of such letter of credit belong to the
Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter
of credit that the letter of credit and the proceeds thereof belong to the
Trust, and to use reasonable efforts to obtain within 30 days (but in any event
to obtain within 90 days) following the Closing Date, an acknowledgement thereof
by the bank (with a copy of such acknowledgement to be sent to the Trustee) and
(c) to indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of a Seller to assign the letter of credit
hereunder). In the case of clause (B) above, the applicable Master Servicer
acknowledges that any letter of credit held by it shall be held in its capacity
as agent of the Trust, and if such Master Servicer sells its rights to service
the applicable Mortgage Loan, such Master Servicer will assign the applicable
letter of credit to the Trust or at the direction of the Special Servicer (with
respect to any Specially Serviced Mortgage Loan) to such party as the Special
Servicer may instruct, in each case, at the expense of the Master Servicer. The
applicable Master Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
(xiii) the original environmental indemnity agreement, if any, related
to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged Properties
operated as hotels and for all Mortgaged Properties securing Mortgage Loans with
a Cut-Off Date Principal Balance equal to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
With respect to any Non-Serviced Mortgage Loan, the preceding document
delivery requirements will be met by the delivery by the Depositor of copies of
the documents specified above (other than the Mortgage Notes (and all
intervening endorsements) respectively evidencing such Non-Serviced Mortgage
Loan with respect to which the originals shall be required), including a copy of
such Non-Serviced Mortgage Loan Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, provided that the term "Mortgage Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage
Loan (but shall not include the related Serviced Companion Mortgage Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III and Mortgage Loan Purchase Agreement IV, as the case may be.
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"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of July 29, 2005 with
respect the MSMC Loans, a form of which is attached hereto as Exhibit K-1.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between PMCF and the Depositor dated as of July 29, 2005 with
respect to the PMCF Loans, a form of which is attached hereto as Exhibit K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage
Loan Purchase Agreement between Xxxxx Fargo and the Depositor dated as of July
29, 2005 with respect to the Xxxxx Fargo Loans, a form of which is attached
hereto as Exhibit K-3.
"MORTGAGE LOAN PURCHASE AGREEMENT IV" means that certain Mortgage Loan
Purchase Agreement between SunTrust and the Depositor dated as of July 29, 2005
with respect to the SunTrust Loans, a form of which is attached hereto as
Exhibit K-4.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMC Loan, the
schedule attached hereto as Schedule II, which identifies each PMCF Loan, the
schedule attached hereto as Schedule III, which identifies each Xxxxx Fargo Loan
and the schedule attached hereto as Schedule IV, which identifies each SunTrust
Loan, as such schedules may be amended from time to time pursuant to Section
2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, Serviced Companion
Mortgage Loan or B Note, the per annum rate at which interest accrues on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the related Serviced Companion Mortgage
Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning set forth in the Preliminary Statement hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the
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sum of (A) the Compensating Interest to be paid by the applicable Master
Servicer on such Distribution Date and (B) the aggregate Prepayment Interest
Excesses for such Collection Period for all Mortgage Loans which are not
Specially Serviced Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust and
(ii) will not cause the Excess Interest Grantor Trust to fail to qualify as a
grantor trust under the Code.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of Fitch, S&P and DBRS.
"NONRECOVERABLE ADVANCE" means any of the following: (i) any Pari
Passu Loan Nonrecoverable Advance (including interest accrued thereon at the
Advance Rate) and (ii) the portion of any Advance (including interest accrued
thereon at the Advance Rate) or Unliquidated Advance (not including interest
thereon) previously made (and in the case of an Unliquidated Advance, not
previously reimbursed to the Trust) or proposed to be made by the applicable
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, that, in
its respective sole discretion, exercised in good faith and, with respect to the
applicable Master Servicer and the Special Servicer, taking into account the
Servicing Standard, will not be or, in the case of an outstanding Advance, would
not be, ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Purchase Proceeds (or from any other collections) with
respect to the related Mortgage Loan or Serviced Companion Mortgage Loan (and
taking into consideration any Crossed Mortgage Loans) (in the case of Servicing
Advances) or B Note (in the case of Servicing Advances) or REO Property (in the
case of P&I Advances and Servicing Advances), as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. Such Officer's Certificate shall
be delivered to the Trustee (upon which the Trustee may conclusively rely) or to
the Depositor (if the Trustee or the Fiscal Agent is delivering such Officer's
Certificate) and (in either case) to the Special Servicer and the Paying Agent
in the time periods as specified in Section 4.4 and shall include the
information and reports set forth in Section 4.4. Absent bad faith, the
applicable Master Servicer's determination as to the recoverability of any
Advance shall be conclusive and binding on the Certificateholders and, in
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the case of any B Note or Serviced Companion Mortgage Loan, the holder of such B
Note or Serviced Companion Mortgage Loan, as applicable, and may, in all cases,
be relied on by the Trustee and the Fiscal Agent; provided, however, that the
Special Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable Advance and shall deliver to the applicable Master Servicer,
the Paying Agent and the Trustee notice of such determination. Absent bad faith,
any such determination shall be conclusive and binding on the
Certificateholders, the applicable Master Servicer, the Trustee and the Fiscal
Agent (provided that the Master Servicer's determination that a P&I Advance or
Servicing Advance, if made, would be a Nonrecoverable Advance shall not be
overruled by any such determination). Absent bad faith, and pursuant to Section
4.1A of this Agreement, any determination as to the recoverability of any
advance made with respect to any Non-Serviced Mortgage Loan by the applicable
Master Servicer or any Other Master Servicer shall be conclusive and binding on
the Certificateholders and may, in all cases, be relied on by the Trustee, the
Fiscal Agent and the applicable Master Servicer. In making any nonrecoverability
determination as described above, the relevant party shall be entitled (i) to
consider (among other things) the obligations of the Mortgagor under the terms
of the Mortgage Loan as it may have been modified, (ii) to consider (among other
things) the related Mortgaged Properties in their "as is" then-current
conditions and occupancies and such party's assumptions (consistent with the
Servicing Standard in the case of the applicable Master Servicer or the Special
Servicer) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, (iii) to estimate and consider, consistent
with the Servicing Standard in the case of the applicable Master Servicer or the
Special Servicer (among other things), future expenses and (iv) to estimate and
consider, consistent with the Servicing Standard (among other things), the
timing of recovery to such party. In addition, the relevant party may,
consistent with the Servicing Standard in the case of the applicable Master
Servicer or the Special Servicer, update or change its nonrecoverability
determinations at any time in accordance with the terms hereof and may,
consistent with the Servicing Standard in the case of the applicable Master
Servicer or the Special Servicer, obtain from the Special Servicer any analysis,
appraisals or other information in the possession of the Special Servicer for
such purposes. In connection with the determination of whether an advance made
would be a Nonrecoverable Advance relating to a B Note, the applicable Master
Servicer and Special Servicer shall also take into account (among other things)
any insurance proceeds and condemnation proceeds (in excess of such proceeds
payable in respect of the related A Note) received in respect of the Mortgaged
Properties.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the 1933 Act, any Class X-1, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class Q, Class S, Class T or Residual Certificate.
"NON-SERVICED COMPANION MORTGAGE LOAN" means a loan not included in
the Trust that is generally payable on a pari passu basis with the related
Non-Serviced Mortgage Loan. There are no Non-Serviced Companion Mortgage Loans
in the Trust.
"NON-SERVICED MORTGAGE LOAN" means any Mortgage Loan included in the
Trust but serviced under another agreement. There are no Non-Serviced Mortgage
Loans in the Trust.
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"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, with
respect to a Non-Serviced Mortgage Loan, the related intercreditor agreement by
and between the holder of the related A Note and the holder of the related B
Note relating to the relative rights of such holders of the respective A Note
and B Note, as the same may be further amended from time to time in accordance
with the terms thereof.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if any.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the Mortgage securing a
Non-Serviced Mortgage Loan and any other note secured by the related Mortgaged
Property.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means the
pooling and servicing agreement under which the related Non-Serviced Mortgage
Loan is being serviced.
"NON-SERVICED MORTGAGE LOAN SPECIAL SERVICER" means the applicable
"special servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if any.
"NON-SERVICED MORTGAGE LOAN TRUSTEE" means the applicable "trustee"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if
any.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicers and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, (y)
in the case of a Seller, a certificate signed by one or more of the Chairman of
the Board, any Vice Chairman, any Managing Director or Director, the President,
or any Executive Vice President, any Senior Vice President, Vice President,
Second Vice President or Assistant Vice President and (z) in the case of the
Paying Agent, a certificate signed by a Responsible Officer, each with specific
responsibilities for the matters contemplated by this Agreement.
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"OPERATING ADVISER" shall mean the Person elected to serve as the
Operating Adviser pursuant to Section 9.37(a); provided, that, with respect to
an A/B Mortgage Loan, a holder of the related B Note, will, to the extent set
forth in the related Intercreditor Agreement, instead be entitled to the rights
and powers granted to the Operating Adviser under this Agreement to the extent
that such rights and powers relate to the related A/B Mortgage Loan (but only so
long as the holder of the related B Note is the directing holder or controlling
holder, as defined in the related Intercreditor Agreement).
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee and the Paying Agent, reasonably acceptable in form and substance to
the Trustee and the Paying Agent, and who is not in-house counsel to the party
required to deliver such opinion but who, in the good faith judgment of the
Trustee and the Paying Agent, is Independent outside counsel knowledgeable of
the issues occurring in the practice of securitization with respect to any such
opinion of counsel concerning the taxation, or status as a REMIC for tax
purposes, of any REMIC Pool or status as a "grantor trust" under the Code of the
Excess Interest Grantor Trust.
"OPTION PURCHASE PRICE" has the meaning set forth in Section 9.36(b)
hereof.
"OTHER ADVANCE REPORT DATE" means with respect to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable,
which has been deposited into a commercial mortgage securitization trust, the
date under the related Other Companion Loan Pooling and Servicing Agreement that
the related Other Master Servicer is required (pursuant to the terms thereof) to
make a determination as to whether it will make a P&I Advance as required under
such Other Companion Loan Pooling and Servicing Agreement.
"OTHER COMPANION LOAN POOLING AND SERVICING AGREEMENT" means any
pooling and servicing agreement relating to a Non-Serviced Companion Mortgage
Loan or a Serviced Companion Mortgage Loan that creates a commercial mortgage
securitization trust, as applicable.
"OTHER MASTER SERVICER" means any master servicer under an Other
Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable.
"OTHER OPERATING ADVISER" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER POOLING AND SERVICING AGREEMENT" has the meaning set forth in
Section 9.4(d) hereof.
"OTHER SECURITIZATION" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER SPECIAL SERVICER" has the meaning set forth in Section 9.4(d)
hereof.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
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"P&I ADVANCE" shall mean (other than with respect to a Serviced
Companion Mortgage Loan or a B Note) (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due during the related Collection Period
was not received by the applicable Master Servicer as of the related
Determination Date (subject to Section 5.1(h)), the portion of such Scheduled
Payment not received; (ii) with respect to any Mortgage Loan that is a Balloon
Mortgage Loan (including any REO Property as to which the related Mortgage Loan
provided for a Balloon Payment) as to which a Balloon Payment was due during or
prior to the related Collection Period but was delinquent, in whole or in part,
as of the related Determination Date, an amount equal to the excess, if any, of
the Assumed Scheduled Payment for such Balloon Mortgage Loan for the related
Collection Period, over any Late Collections received in respect of such Balloon
Payment during such Collection Period; and (iii) with respect to each REO
Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the Mortgage Loan related to such REO Property during the related
Collection Period, over remittances of REO Income to the applicable Master
Servicer by the Special Servicer, reduced by any amounts required to be paid as
taxes on such REO Income (including taxes imposed pursuant to Section 860G(c) of
the Code); provided, however, that the interest portion of any Scheduled Payment
or Assumed Scheduled Payment shall be advanced at a per annum rate equal to the
sum of the REMIC I Net Mortgage Rate, relating to such Mortgage Loan or such REO
Mortgage Loan and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee and the Excess Servicing Fee; and provided, further, that
the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which
has been modified shall be calculated based on its terms as modified and
provided, further, that the interest component of any P&I Advance with respect
to a Mortgage Loan as to which there has been an Appraisal Reduction shall be an
amount equal to the product of (i) the amount of interest required to be
advanced without giving effect to this proviso and (ii) a fraction, the
numerator of which is the Principal Balance of such Mortgage Loan as of the
immediately preceding Determination Date less any Appraisal Reduction applicable
to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the portion of such Appraisal Reduction
allocable (based upon their respective Principal Balances) to such Non-Serviced
Mortgage Loan or Serviced Pari Passu Mortgage Loan under the related
Intercreditor Agreement or the related Loan Pair Intercreditor Agreement, or in
the case of an A/B Mortgage Loan, the portion of such Appraisal Reduction
allocable to the A Note pursuant to the definition of an "Appraisal Reduction")
and the denominator of which is the Principal Balance of such Mortgage Loan as
of such Determination Date. All P&I Advances for any Mortgage Loans that have
been modified shall be calculated on the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or any
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
"P&I PARI PASSU LOANS" has the meaning set forth in Section 4.1A
hereof.
"PAR MASTER SERVICER" has the meaning set forth in the preamble
hereto.
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"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any "Nonrecoverable
Servicing Advance" (as defined in the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan
pursuant to and in accordance with the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement; provided that if the applicable Non-Serviced
Mortgage Loan Master Servicer shall have made a "Servicing Advance" (as defined
in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in
the nature of an expenditure benefiting the related Mortgaged Property
generally, the portion thereof attributable to any Non-Serviced Mortgage Loan
shall be determined based on the outstanding balances of such Non-Serviced
Mortgage Loan and all the related pari passu loans secured by such Non-Serviced
Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan as set forth in the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement; provided, however, that the Pari Passu
Loan Servicing Fee Rate for purposes of any Non-Serviced Mortgage Loan set forth
on Schedule XII as to which such fee is calculated on a 30/360 basis shall be
(a) the related "Master Servicing Fee Rate" set forth in the Non-Serviced
Mortgage Loan Pooling and Servicing Agreement, multiplied by (b) 30 divided by
the actual number of days in the loan accrual period with respect to such loan.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates, other than the Class X, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q and Class S Certificates, for the first Distribution Date, the rate
set forth in the Preliminary Statement hereto. For any Distribution Date
occurring thereafter (and with respect to the Class X, Class B, Class C, Class
E, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q and Class S, for each Distribution Date), the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) the Class A-1, Class X-0X, Xxxxx X-0X, Xxxxx X-0X,
Class A-AB, Class A-4A and Class A-4B Certificates, the fixed rate corresponding
to such Class set forth in the Preliminary Statement hereto, (iv) the Class A-3
Certificates shall equal the lesser of (A) 5.392% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class A-J
Certificates shall equal the lesser of (A) 5.073% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (vi) the Class B
Certificates shall equal the lesser of (A) 5.152% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (vii) the Class C
Certificates shall equal the lesser of (A) 5.172% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class D
Certificates shall equal the lesser of
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(A) 5.202% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (ix) the Class E Certificates shall equal the lesser of
(A) 5.231% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (x) the Class F Certificates shall equal the lesser of
(A) 5.271% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (xi) the Class G Certificates shall equal the lesser of
(A) 5.379% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (xii) the Class H, Class J and Class K Certificates
shall equal the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, (xiii) the Class L, Class M, Class N, Class O, Class P, Class Q and Class
S Certificates shall equal the lesser of (A) 4.756% per annum and (B) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xiv) the
Class X-1 Certificates shall equal the per annum rate equal to the weighted
average of the Class X-1 Strip Rates for the respective Class X-1 Components for
such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date), and (xv) the Class X-2 Certificates shall equal the per
annum rate equal to the weighted average of the Class X-2 Strip Rates for the
respective Class X-2 Components for such Distribution Date (weighted on the
basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date). For purposes of
calculating the interest to be paid to Certificateholders on any Distribution
Date in connection with the reimbursement of Realized Losses, the Pass-Through
Rate in respect of the Class A-2 Certificates shall be deemed to be the weighted
average of the Pass-Through Rates of the Class A-2A Certificates and the Class
A-2B Certificates and in respect of the Class A-4 Certificates shall be deemed
to be the weighted average of the Pass-Through Rates of the Class A-4A
Certificates and the Class A-4B Certificates, the relevant weighting to be on
the basis of the respective Certificate Balances of such Classes of Certificates
immediately prior to such Distribution Date.
"PAYING AGENT" means Xxxxx Fargo Bank, National Association and any
successor or assign, as provided herein. The Luxembourg Paying Agent shall not
be the Paying Agent and the duties of the Luxembourg Paying Agent shall be
distinct from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to the
Paying Agent in an amount agreed to between the Trustee and the Paying Agent
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Class T Certificates and the Residual Certificates, the fraction
of such Class evidenced by such Certificate, expressed as a percentage (carried
to four decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate and
the Class T Certificate, the percentage interest in distributions (if any) to be
made with respect to the relevant Class, as stated on the face of such
Certificate.
"PERFORMING PARTY" has the meaning set forth in Section 8.26(b).
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"PERMITTED TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated or its
respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLANNED PRINCIPAL BALANCE" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule XIII.
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R. Section 2510.3-101.
"PMCF" has the meaning set forth in the Preliminary Statement hereto.
"PMCF LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) is made after the Due Date for
such Mortgage Loan through and including the last day of the Collection Period,
the amount of interest that accrues on the amount of such Principal Prepayment
from such Due Date to the date such payment was made, plus (if made) any payment
by the Mortgagor of interest that would have accrued to the next succeeding Due
Date (net of the Master Servicing Fee, the Excess Servicing Fees, the Special
Servicing Fee, the Trustee Fee and the servicing fee and trustee fee payable in
connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced
Mortgage Loan)), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period
(including any shortfall resulting from such a payment during the grace period
relating to such Due Date). The amount
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of any Prepayment Interest Shortfall shall equal the excess of (A) the aggregate
amount of interest which would have accrued on the Scheduled Principal Balance
of such Mortgage Loan if the Mortgage Loan had paid on its Due Date and such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Excess Servicing Fees, the Special Servicing Fee, the Trustee
Fee and the servicing fee payable in connection with any Non-Serviced Mortgage
Loan (in the case of any Non-Serviced Mortgage Loan)) over (B) the aggregate
interest that did so accrue through the date such payment was made (net of such
fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the related Collection Period in connection with Principal
Prepayments on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or REO Mortgage Loan, for purposes of performing
calculations with respect to any Distribution Date, the principal balance of
such Mortgage Loan, Serviced Companion Mortgage Loan, B Note or the related REO
Mortgage Loan outstanding as of the Cut-Off Date after taking into account all
principal and interest payments made or due on or prior to the Cut-Off Date
(assuming, for any Mortgage Loan, Serviced Companion Mortgage Loan or B Note
with a Due Date in August 2005 that is not August 1, 2005, that principal and
interest payments for such month were paid on August 1, 2005), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal with respect to such Mortgage Loan, Serviced Companion Mortgage Loan,
B Note or any related REO Mortgage Loan that have been collected or received
during any preceding Collection Period, other than any Scheduled Payments due in
any subsequent Collection Period, and (ii) any Realized Principal Loss incurred
in respect of such Mortgage Loan or related REO Mortgage Loan during any related
Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class X-0X, Xxxxx X-0X, Xxxxx X-0X, Class A-AB, Class A-3, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class
S Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
amount equal to the excess, if any, of
(I) the sum of:
(A) the aggregate (without duplication) of the following:
(i) the principal portion of all Scheduled Payments (other than the
principal portion of Balloon Payments) and any Assumed Scheduled Payments, in
each case, to the extent received or advanced, as the case may be, in respect of
the Mortgage Loans and any REO
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Mortgage Loans (but not in respect of any Serviced Companion Mortgage Loan or B
Note or its successor REO Mortgage Loan) for their respective Due Dates
occurring during the related Collection Period; and
(ii) all payments (including Principal Prepayments and the principal
portion of Balloon Payments but not in respect of any Serviced Companion
Mortgage Loan or B Note or its respective successor REO Mortgage Loan) and any
other collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the applicable Master Servicer as recoveries of
principal thereof in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in respect
of the Mortgage Loans during the related Collection Period that, in each case,
represents a delinquent amount as to which an Advance had been made, which
Advance (or interest thereon) was previously reimbursed during the Collection
Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement
Amount for which a deduction was made under clause (II)(A) below with respect to
such Distribution Date (with respect to each such Mortgage Loan, allocated first
to the Loan Group Principal Distribution Amount related to the Loan Group that
does not include such Mortgage Loan, and then to the Loan Group Principal
Distribution Amount related to the Loan Group that includes such Mortgage Loan);
and
(C) the aggregate amount of any collections received on or in respect
of the Mortgage Loans during the related Collection Period that, in each case,
represents a recovery of an amount previously determined (in a Collection Period
for a prior Distribution Date) to have been a Nonrecoverable Advance (or
interest thereon) and for which a deduction was made under clause (II)(B) below
with respect to a prior Distribution Date (with respect to each such Mortgage
Loan, allocated first to the Loan Group Principal Distribution Amount related to
the Loan Group that does not include such Mortgage Loan, and then to the Loan
Group Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and
Advance Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the applicable Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent from amounts in the applicable
Collection Account allocable to principal received or advanced with respect to
the Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related Collection
Period to one or more of the applicable Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent during the
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related Collection Period from amounts in the Collection Account allocable to
principal received or advanced with respect to the Mortgage Loans pursuant to
subsection (iv) of Section 5.2(a)(II).
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan, a Serviced Companion Mortgage Loan
or a B Note which is received or recovered in advance of its scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement Memorandum
dated July 29, 2005, pursuant to which the Class X-1, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S and Class
T Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PURCHASE PRICE" means, with respect to the purchase by a Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a price equal to the sum (without
duplication) of (A) 100% of the unpaid Principal Balance of such Mortgage Loan
(or deemed Principal Balance, in the case of an REO Mortgage Loan), plus (B)
accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not
including, the Due Date in the Collection Period in which such purchase or
liquidation occurs, plus (C) the amount of any expenses related to such Mortgage
Loan and any related Serviced Companion Mortgage Loan, B Note or REO Property
(including any Servicing Advances and Advance Interest thereon (which have not
been paid by the Mortgagor or out of Late Fees or default interest paid by the
related Mortgagor on the related Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) related to such Mortgage Loan and any related
Serviced Companion Mortgage Loan or B Note, the amount of any Servicing Advances
(and Advance Interest thereon) that were reimbursed from principal collections
on the Mortgage Pool pursuant to Section 5.2(a)(II)(iii) and not subsequently
recovered from the related Mortgagor, and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) that are reimbursable or payable to the
applicable Master Servicer, the Special Servicer, the Paying Agent, the Trustee,
the Fiscal Agent, any Non-Serviced Mortgage Loan Master Servicer or any
Non-Serviced Mortgage Loan Special Servicer, plus (D) if such Mortgage Loan or
REO Mortgage Loan is being repurchased or substituted for by a Seller pursuant
to the related Mortgage Loan Purchase Agreement, all expenses reasonably
incurred or to be incurred by the applicable Master Servicer, the Special
Servicer, the Depositor, the Paying Agent, or the Trustee in respect of the
Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the applicable
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an
REO Mortgage Loan by
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a Seller pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and
REO Properties by the Depositor, such Master Servicer, the Special Servicer or
the holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A" by Fitch if rated by Fitch or if not rated by Fitch, then Fitch has issued a
Rating Agency Confirmation and "A" by S&P if rated by S&P or if not rated by
S&P, then S&P has issued a Rating Agency Confirmation, and (ii) with respect to
the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
insurance company that has a claim paying ability no lower than "A" by Fitch if
rated by Fitch or if not rated by Fitch, then as to which Fitch has issued a
Rating Agency Confirmation, "A" by S&P if rated by S&P or if not rated by S&P,
then S&P has issued a Rating Agency Confirmation and "A(low)" by DBRS, or if not
rated by DBRS, then either an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations or DBRS has issued a Rating Agency Confirmation, or (iii) in
either case, a company not satisfying clause (i) or (ii) but with respect to
which a Rating Agency Confirmation is obtained. "Qualified Insurer" shall also
mean any entity that satisfies all of the criteria, other than the ratings
criteria, set forth in one of the foregoing clauses and whose obligations under
the related insurance policy are guaranteed or backed by an entity that
satisfies the ratings criteria set forth in such clause (construed as if such
entity were an insurance company referred to therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date
of substitution, (i) has an outstanding principal balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of the Principal Balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the applicable Master
Servicer for deposit into a Certificate Account, and shall be treated as a
Principal Prepayment hereunder (other than for purposes of calculating
Compensating Interest); (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan;
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(iii) has a remaining term to stated maturity not greater than, and not more
than two years less than, that of the Deleted Mortgage Loan; (iv) has an
original Loan-to-Value Ratio not higher than that of the Deleted Mortgage Loan
and a current Loan-to-Value Ratio (equal to the outstanding principal balance on
the date of substitution divided by its current Appraised Value) not higher than
the current Loan-to-Value Ratio of the Deleted Mortgage Loan and has a current
Debt Service Coverage Ratio equal to or greater than the current Debt Service
Coverage Ratio of the Deleted Mortgage Loan; (v) will comply with all of the
representations and warranties relating to Mortgage Loans set forth herein, as
of the date of substitution; (vi) has a Phase I Environmental Report relating to
the related Mortgaged Property in its Mortgage Files and such Phase I
Environmental Report does not, in the good faith reasonable judgment of the
Special Servicer, consistent with the Servicing Standard, raise material issues
that have not been adequately addressed; (vii) has an engineering report
relating to the related Mortgaged Property in its Mortgage Files and such
engineering report does not, in the good faith reasonable judgment of the
Special Servicer, consistent with the Servicing Standard raise material issues
that have not been adequately addressed; and (viii) as to which the Trustee and
the Paying Agent have received an Opinion of Counsel, at the related Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan
may have a Maturity Date after the date three years prior to the Rated Final
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained, and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of
such substitution (provided, however, that such approval of the Operating
Adviser may not be unreasonably withheld). In the event that either one mortgage
loan is substituted for more than one Deleted Mortgage Loan or more than one
mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A)
the Principal Balance referred to in clause (i) above shall be determined on the
basis of aggregate Principal Balances and (B) the rates referred to in clause
(ii) above and the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis (provided, that the REMIC
I Net Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less
than the highest Pass-Through Rate of any outstanding Class of Certificates that
is not subject to a cap based on the Weighted Average REMIC I Net Mortgage
Rate). Whenever a Qualifying Substitute Mortgage Loan is substituted for a
Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Paying Agent, which
shall deliver a copy of such certification to the Special Servicer, the Trustee
and the Operating Adviser promptly, and in any event within five Business Days
following the Paying Agent's receipt of such certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the Distribution Date in August 2042.
"RATING AGENCIES" means DBRS, Fitch and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by
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such Rating Agency to any Class of Certificates then rated by such Rating
Agency, provided that with respect to any matter affecting any Serviced
Companion Mortgage Loan, such confirmation shall also refer to the nationally
recognized statistical rating organizations then rating the securities
representing an interest in such loan and such rating organizations' respective
ratings of such securities.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses treated as Realized Interest
Losses pursuant to clause (iv) of the definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss described in clause
(iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance (plus the
amount of any Unliquidated Advance with respect to such Mortgage Loan) of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, any such Expense Loss (other than Expense Losses resulting from
the payment of Special Servicing Fees) to the extent that such Expense Losses do
not exceed amounts collected in respect of the Mortgage Loans that were
identified as allocable to principal in the Collection Period in which such
Expense Losses were incurred, and any such excess shall be treated as a Realized
Interest Loss and (v) any Unliquidated Advance that is determined by the
applicable Master Servicer or the Special Servicer to be a Nonrecoverable
Advance.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan, a Serviced Companion Mortgage Loan, a B Note or
REO Property following the period in which a Final Recovery Determination occurs
plus other amounts defined as "Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
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"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note that was modified, based on the modified terms), or a complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event, such amounts constitute a Workout-Delayed Reimbursement Amount,
or such amounts have been forgiven. An A Note shall not constitute a
Rehabilitated Mortgage Loan unless its related B Note would constitute a
Rehabilitated Mortgage Loan. A B Note shall not constitute a Rehabilitated
Mortgage Loan unless its related A Note also would constitute a Rehabilitated
Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a
Rehabilitated Mortgage Loan unless its related Serviced Companion Mortgage Loan
would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Mortgage
Loan shall not constitute a Rehabilitated Mortgage Loan unless its related
Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage
Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMAINING CERTIFICATEHOLDER" means any Holder (or Holders if they act
in unanimity) holding 100% of the then outstanding Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S and Class X Certificates or an
assignment of the voting rights thereof; provided, however, that the Certificate
Balances of the Class A Senior, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates have been reduced to zero.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
with respect thereto as shall from time to time be held in a Certificate
Account, the Reserve Account, the Distribution Account (other than the portion
thereof constituting the Excess Interest Sub-account) and the Interest Reserve
Account, the Insurance Policies other than the interests of the holder of any
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Serviced Companion Mortgage Loan or B Note therein) and any REO Properties or
beneficial interests therein (other than the interests of the holder of any
Serviced Companion Mortgage Loan or B Note therein) for which a REMIC election
shall be made pursuant to Section 12.1(a) hereof. Excess Interest on the
Mortgage Loans and the Excess Interest Sub-account shall constitute assets of
the Trust but shall not be a part of any REMIC Pool. The Non-Serviced Companion
Mortgage Loans and any amounts payable thereon shall not constitute assets of
the Trust or any REMIC Pool formed hereunder. No B Note or any amounts payable
thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder. No Serviced Companion Mortgage Loan or any amounts payable thereon
shall constitute an asset of the Trust or any REMIC Pool formed hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, as to any REMIC I Regular Interest, a rate per annum equal to (a) with
respect to any Mortgage Loan that accrues interest on the basis of a 360-day
year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the Mortgage
Rate thereof (without taking into account any increase therein after the
Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above, and assuming an interest
accrual basis that is the same as the actual interest accrual basis of such
Mortgage Loan, provided that for purposes of this clause (b), (i) the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Account and (ii) the REMIC I Net Mortgage Rate for the loan
accrual period relating to the Due Date in March (commencing in 2006) shall be
determined taking into account the addition of any amounts withdrawn from the
Interest Reserve Account.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests and related amounts in the Distribution Account for which a
REMIC election shall be made pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
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"REMIC II REGULAR INTEREST A-1-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $121,200,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $106,156,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $1,498,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $318,834,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $317,474,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $304,236,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $290,440,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $277,376,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $164,140,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-7" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial
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Certificate Balance equal to $156,293,000, and which has a Pass-Through Rate
equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-8" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $148,905,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A-9" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $141,910,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $294,875,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $188,836,,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $87,103,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-2B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-AB" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-AB Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-3 Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $1,060,595,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
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"REMIC II REGULAR INTEREST A-4A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $1,031,791,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-4A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $952,944,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $845,317,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $772,866,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-4B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $27,541,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate
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Balance equal to $13,330,000, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $24,098,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $15,904,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $27,541,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $24,919,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $34,426,000 and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $5,871,000 and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $30,983,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $17,951,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST K-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $41,311,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $37,436,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class Q Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST S" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class S Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest
A-1-3, REMIC II Regular Interest A-1A-1, REMIC II Regular Interest A-1A-2, REMIC
II Regular Interest X-0X-
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0, XXXXX II Regular Interest A-1A-4, REMIC II Regular Interest A-1A-5, REMIC II
Regular Interest A-1A-6, REMIC II Regular Interest A-1A-7, REMIC II Regular
Interest A-1A-8, REMIC II Regular Interest A-1A-9, REMIC II Regular Interest
A-2A-1, REMIC II Regular Interest A-2A-2, REMIC II Regular Interest A-2A-3,
REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular
Interest A-AB, REMIC II Regular Interest A-3, REMIC II Regular Interest A-4A-1,
REMIC II Regular Interest A-4A-2, REMIC II Regular Interest A-4A-3, REMIC II
Regular Interest A-4A-4, REMIC II Regular Interest A-4A-5, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-J, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest E-1, REMIC II Regular Interest E-2, REMIC II
Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest
G, REMIC II Regular Interest H-1, REMIC II Regular Interest H-2, REMIC II
Regular Interest J-1, REMIC II Regular Interest J-2, REMIC II Regular Interest
K-1, REMIC II Regular Interest K-2, REMIC II Regular Interest L, REMIC II
Regular Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O,
REMIC II Regular Interest P, REMIC II Regular Interest Q and REMIC II Regular
Interest S.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election shall be made pursuant to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-1A Certificates, Class A-2A Certificates, Class A-2B
Certificates, Class A-AB Certificates, Class A-3 Certificates, Class A-4A
Certificates, Class A-4B Certificates, Class A-J Certificates, Class X-1
Certificates, Class X-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class O Certificates, Class P Certificates, Class Q Certificates and Class S
Certificates.
"REMIC POOL" means each of REMIC I, REMIC II and REMIC III and the
three segregated pools of assets designated as a REMIC pursuant to Section
12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A Senior,
Class A-J, Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates.
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"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the applicable Master Servicer
or the Special Servicer of Liquidation Proceeds and other payments and
recoveries (including proceeds of a final sale) from the sale or other
disposition of REO Property.
"REO INCOME" means, with respect to any REO Property that had not been
security for an A/B Mortgage Loan or Loan Pair for any Collection Period, all
income received in connection with such REO Property during such period less any
operating expenses, utilities, real estate taxes, management fees, insurance
premiums, expenses for maintenance and repairs and any other capital expenses
directly related to such REO Property paid during such period or, with respect
to an REO Property that had been security for an A/B Mortgage Loan or Loan Pair,
the portion of the amounts described above received with respect to such REO
Property and allocable to the related A Note or Serviced Pari Passu Mortgage
Loan, as applicable, pursuant to the related Intercreditor Agreement or Loan
Pair Intercreditor Agreement, as applicable. With respect to any Non-Serviced
Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has
foreclosed upon the Mortgaged Property secured by such Non-Serviced Mortgage
Loan Mortgage), the REO Income shall comprise only such portion of the foregoing
that is allocable to the holder of such Non-Serviced Mortgage Loan, and with
respect to the Mortgaged Property securing any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts allocable to the holder of the related Serviced
Pari Passu Mortgage or the related A Note, as applicable, shall be included in
REO Income.
"REO MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the related Mortgaged Property is an REO
Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein, if
the Mortgaged Property securing any Loan Pair or the Mortgaged Property securing
an A/B Mortgage Loan has been acquired by the Trust) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the second Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a).
"REQUEST FOR RELEASE" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
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"REQUIRED APPRAISAL LOAN" means any Mortgage Loan, Loan Pair or B Note
as to which an Appraisal Event has occurred. In the case of an A/B Mortgage
Loan, upon the occurrence of an Appraisal Event in respect of either the related
A Note or B Note, the A/B Mortgage Loan shall be deemed to be a single Required
Appraisal Loan. A Mortgage Loan, Loan Pair or B Note will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class R-I
Certificates, with respect to REMIC II, the Class R-II Certificates and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Global Securities and
Trust Services Group, or with respect to the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each with specific responsibilities for
the matters contemplated by this Agreement and when used with respect to any
successor Trustee, Fiscal Agent or Paying Agent, any Vice President, Assistant
Vice President, corporate trust officer or any assistant corporate trust officer
or persons performing similar roles on behalf of the Trustee, Fiscal Agent or
Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA, provided that such change need not be implemented
prior to the date that is three (3) months following the adoption of such change
by the CMSA) prepared by the Servicer Report Administrator (combining reports
prepared by each Master Servicer and the Special Servicer (as set forth in
Section 9.32 of this Agreement with respect to Specially Serviced Mortgage Loans
and REO Properties)): (i) a Comparative Financial Status Report; (ii) without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a CMSA Watch List, (v) a Property File, (vi) without
duplication with Section 8.14, a Financial File, (vii) a CMSA Special Servicer
Loan File and (vii) a realized loss report substantially in the form included in
Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class S, Class Q,
Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C, Class B, Class A-J and finally to the Class
X and Class A Senior Certificates, on a pro rata basis, as described herein.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
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"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"XXXXXXXX-XXXXX CERTIFICATION" has the meaning set forth in Section
8.26(b).
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan, a Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and interest which were due on or before the
Cut-Off Date, whenever received, and taking account of any modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan,
for purposes of performing calculations with respect to any Distribution Date,
the Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to such Mortgage Loan, Serviced Companion
Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan.
"SELLER" means MSMC, PMCF, Xxxxx Fargo or SunTrust, as the case may
be.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means the FRIS Chkn Companion Loan
or the U-Haul Portfolio Companion Loan, as the case may be. Any Serviced
Companion Mortgage Loan is not a "Mortgage Loan".
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of the
custodial sub-account(s) of the applicable Certificate Account (but which are
not included in the Trust) created and maintained by the applicable Master
Servicer pursuant to Section 5.1(c) on behalf of the holder of the related
Serviced Companion Mortgage Loan. Any such sub-account(s) shall be maintained as
a sub-account of an Eligible Account.
"SERVICED PARI PASSU MORTGAGE" means the Mortgage securing a Serviced
Pari Passu Mortgage Loan and its related Serviced Companion Mortgage Loan
secured by the related Mortgaged Property.
"SERVICED PARI PASSU MORTGAGE LOAN" means the FRIS Chkn Pari Passu
Loan or the U-Haul Portfolio Pari Passu Loan, as the case may be. Any Serviced
Pari Passu Mortgage Loan is a "Mortgage Loan".
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by a Master
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Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify a Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent as the case
may be (subject to standard exclusions), for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of a Master Servicer's, the Special Servicer's, the Trustee's, the
Fiscal Agent's or the Paying Agent's, as the case may be, directors, officers or
employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents listed
in the definition of "Mortgage File" relating to a Mortgage Loan and shall also
include, to the extent required to be (and actually) delivered to the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"SERVICER REPORT ADMINISTRATOR" means the PAR Master Servicer (without
regard to the final sentence of the definition of "Master Servicer") or any
successor thereto appointed as provided herein.
"SERVICER REPORT ADMINISTRATOR FEE" means for each calendar month, as
to each Mortgage Loan (including REO Mortgage Loans), the portion of the
Servicer Report Administrator Fee Rate applicable to such month (determined
using the same interest accrual methodology (other than the rate of accrual)
that is applied with respect to the Mortgage Rate for such Mortgage Loan for
such month) multiplied by the Scheduled Principal Balance of each such Mortgage
Loan immediately before the Due Date occurring in such month.
"SERVICER REPORT ADMINISTRATOR FEE RATE" means 0.0005% per annum.
"SERVICING ADVANCE" means any cost or expense of the applicable Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, designated as a Servicing Advance pursuant to this Agreement and any other
costs and expenses incurred by the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, to protect and
preserve the security for such Mortgage Loan and/or (if applicable) the related
Serviced Companion Mortgage Loan or B Note.
"SERVICING OFFICER" means, any officer or employee of the applicable
Master Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note whose name and specimen signature appear on a list of servicing officers or
employees furnished to the Trustee by the applicable
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Master Servicer and signed by an officer of the applicable Master Servicer, as
such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to each of the Master
Servicers or the Special Servicer, as the case may be, to service and administer
the Mortgage Loans (and any Serviced Companion Mortgage Loan and B Note but not
any Non-Serviced Mortgage Loan) that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in the best interests of
and for the benefit of the Certificateholders (and in the case of any Serviced
Companion Mortgage Loan or B Note, the related holder of the Serviced Companion
Mortgage Loan or B Note, as applicable) as a collective whole (as determined by
the applicable Master Servicer or the Special Servicer, as the case may be, in
its good faith and reasonable judgment), in accordance with applicable law, the
terms of this Agreement, the terms of the respective Mortgage Loans, any
Serviced Companion Mortgage Loan and any B Note (and, in the case of any Loan
Pair or any A Note and B Note, the related Loan Pair Intercreditor Agreement or
the related Intercreditor Agreement, as applicable) and, to the extent
consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties (in the case of the applicable Master Servicer, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage loan servicers servicing similar Mortgage
Loans) or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans, any Serviced Companion Mortgage
Loan and any B Note or, if a Mortgage Loan, any Serviced Companion Mortgage Loan
or any B Note comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery of principal and interest on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in the case of any A/B Mortgage
Loan and its related B Note or any Loan Pair, the maximization of recovery on
such A/B Mortgage Loan or Loan Pair, as applicable, to the Certificateholders
and the holder of the related B Note or Serviced Companion Mortgage Loan, as
applicable, all taken as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at a rate, taking into account the related
REMIC I Net Mortgage Rate, in the case of the Mortgage Loans (other than any A
Note or Serviced Pari Passu Mortgage Loan) or the weighted average of the
mortgage rates on the related A Note and B Note and the risk of collection, in
the case of any A/B Mortgage Loan, and on the related Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan in the case of any Loan
Pair); and without regard to: (I) any other relationship that the applicable
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof may have with the related Mortgagor; (II) the ownership of any
Certificate or any interest in any Non-Serviced Companion Mortgage Loan,
Serviced Companion Mortgage Loan, B Note or any mezzanine loan related to a
Mortgage Loan by the applicable Master Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof; (III) the applicable Master Servicer's
obligation to make Advances; (IV) the right of the applicable Master Servicer
(or any Affiliate thereof) or the Special Servicer (or
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any Affiliate thereof), as the case may be, to receive reimbursement of costs,
or the sufficiency of any compensation payable to it, hereunder or with respect
to any particular transaction and (V) any obligation of the applicable Master
Servicer (or any Affiliate thereof) to repurchase any Mortgage Loan from the
Trust.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which a Balloon Payment
is past due; provided, however, that pursuant to the first sentence of Section
8.18(a)(ii), the applicable Master Servicer shall have the right (without any
Person's consent) to extend the Maturity Date of any Balloon Mortgage Loan for
not more than 60 days beyond the original Maturity Date if the Borrower has
obtained a written commitment for refinancing of the Mortgage Loan or purchase
of the related Mortgaged Property and provided, further, that (a) the applicable
Master Servicer (subject to the penultimate paragraph of Section 9.39 of this
Agreement and with the consent of the Special Servicer, after the Special
Servicer's consultation with the Operating Adviser) and the Special Servicer, in
the circumstances set forth in the third and fifth sentences of Section
8.18(a)(ii), shall have the authority to otherwise extend the maturity date of
any Balloon Mortgage Loan and, in the case of such an extension, a Servicing
Transfer Event shall not occur with respect to such Balloon Mortgage Loan and
(b) if the Mortgagor makes the Assumed Scheduled Payments with respect to such
Balloon Mortgage Loan and the applicable Master Servicer or the Special
Servicer, as applicable, is considering an extension pursuant to Section
8.18(a)(ii), a Servicing Transfer Event shall not occur as a result of such
default unless and until such Balloon Payment remains past due for a period of
30 days and such Balloon Mortgage Loan has not been extended pursuant to Section
8.18(a)(ii); (ii) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which any other payment of
principal and/or interest is more than 60 days past due or has not been made on
or before the second Due Date following the Due Date such payment was due; (iii)
any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which, to the applicable Master Servicer's
knowledge, the Mortgagor has consented to the appointment of a receiver or
conservator in any insolvency or similar proceeding of, or relating to, such
Mortgagor or to all or substantially all of its property, or the Mortgagor has
become the subject of a decree or order issued under a bankruptcy, insolvency or
similar law and such decree or order shall have remained undischarged or
unstayed for a period of 30 days; (iv) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which the applicable Master Servicer shall have received notice of the
foreclosure or proposed foreclosure of any other lien on the Mortgaged Property;
(v) any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced
Companion Mortgage Loan or B Note as to which the applicable Master Servicer or
the Special Servicer has knowledge of a default (other than a failure by the
related Mortgagor to pay principal or interest) which in the good faith
reasonable judgment of the applicable Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer) materially and adversely affects the interests of the
Certificateholders or the holder of any related Serviced Companion Mortgage Loan
or B Note and which has occurred and remains unremedied for the applicable grace
period specified in such Mortgage Loan (or, if no grace period is specified, 60
days); (vi) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which the Mortgagor admits in
writing its
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inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; (vii) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the applicable Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer), (a) (other than with respect to any A/B Mortgage Loan) a
payment default is imminent or is likely to occur within 60 days, or (b) any
other default is imminent or is likely to occur within 60 days and such default,
in the judgment of the applicable Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer), is reasonably likely to materially and adversely affect the
interests of the Certificateholders or the holder of any related Serviced
Companion Mortgage Loan or B Note (as the case may be); and (viii) with respect
to any A/B Mortgage Loan, if the holder of the B Note chooses not to cure a
monetary default that is permitted to be cured under the related Intercreditor
Agreement, the Business Day following the expiration of the Cure Period (as
defined in the related Intercreditor Agreement) that commences one month after
such monetary default; provided, however, that (1) if the holder of the B Note
exercised its right to cure a monetary default and a monetary default occurs in
the following month due to the holder of the B Note's failure to cure, then
servicing of such Mortgage Loan shall be transferred to the Special Servicer on
the Business Day following the expiration of the Cure Period (as defined in the
related Intercreditor Agreement) of the holder of the B Note if the holder of
the B Note does not cure the current monetary default or (2) if the holder of
the B Note has exercised its right to cure three consecutive monetary defaults
and a monetary default occurs in the following month, then servicing of such
Mortgage Loan shall be transferred to the Special Servicer at the expiration of
the Mortgagor's grace period for the current monetary default. If the event is
based on a determination by the Special Servicer, then the Servicing Transfer
Event shall be subject to the applicable Master Servicer's receipt of notice of
such determination and the consent of the Operating Adviser to such
determination (subject to the penultimate paragraph of Section 9.39). If a
Servicing Transfer Event occurs with respect to an A Note, it shall be deemed to
have occurred also with respect to its related B Note. If a Servicing Transfer
Event occurs with respect to a B Note, it shall be deemed to have occurred also
with respect to its related A Note. However, if a Servicing Transfer Event has
not occurred with respect to an A Note solely due to the holder of the related B
Note exercising its cure rights under the related Intercreditor Agreement, then
a Servicing Transfer Event will not occur with respect to such B Note. If a
Servicing Transfer Event occurs with respect to any Serviced Pari Passu Mortgage
Loan, it shall be deemed to have occurred also with respect to the related
Serviced Companion Mortgage Loan. If a Servicing Transfer Event occurs with
respect to any Serviced Companion Mortgage Loan, it shall be deemed to have
occurred also with respect to the related Serviced Pari Passu Mortgage Loan. The
parties hereto understand that under the applicable Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, if a servicing transfer event occurs with
respect to any Non-Serviced Companion Mortgage Loan, it shall be deemed to have
occurred also with respect to the related Non-Serviced Mortgage Loan, but shall
not be a Specially Serviced Mortgage Loan pursuant to this Agreement.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
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"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"SPECIAL SERVICER" means CWCapital Asset Management LLC, or any
successor Special Servicer as herein provided, including without limitation, any
successor Special Servicer appointed pursuant to Section 9.39 hereof.
"SPECIAL SERVICER COMPENSATION" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out
Fees and any other amounts to be paid to the Special Servicer pursuant to the
terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan (including
REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Specially Serviced Mortgage Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and each Master Servicer by the Special Servicer
signed by an officer of the Special Servicer, as such list may from time to time
be amended.
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"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note with respect to which the applicable
Master Servicer has notified the Special Servicer, the Operating Adviser and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received all information,
documents and records relating to such Mortgage Loan, Serviced Companion
Mortgage Loan or B Note as reasonably requested by the Special Servicer to
enable it to assume its duties with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note. A Specially Serviced Mortgage Loan shall
cease to be a Specially Serviced Mortgage Loan from and after the date on which
the Special Servicer notifies the applicable Master Servicer, the Operating
Adviser, the Paying Agent and the Trustee, in accordance with Section 8.1(b),
that such Mortgage Loan (and the related B Note in the case of an A/B Mortgage
Loan, and the related Serviced Companion Mortgage Loan in the case of a Loan
Pair) has become a Rehabilitated Mortgage Loan (and, in the case of an A Note
(or B Note) that is or was a Specially Serviced Mortgage Loan, its related B
Note (or A Note) has also become a Rehabilitated Mortgage Loan and, in the case
of a Serviced Pari Passu Mortgage Loan (or Serviced Companion Mortgage Loan)
that is or was a Specially Serviced Mortgage Loan, its related Serviced
Companion Mortgage Loan (or Serviced Pari Passu Mortgage Loan) has also become a
Rehabilitated Mortgage Loan), with respect to such Servicing Transfer Event,
unless and until the applicable Master Servicer notifies the Special Servicer,
the Paying Agent and the Trustee, in accordance with Section 8.1(b) that another
Servicing Transfer Event with respect to such Mortgage Loan, Serviced Companion
Mortgage Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 12.1(b).
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"SUNTRUST" has the meaning set forth in the Preliminary Statement
hereto.
"SUNTRUST LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
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"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of the REMIC I (including the Mortgage Loans
other than any Excess Interest), such amounts related thereto as shall from time
to time be held in a Certificate Account, the Distribution Account, the Reserve
Account, the Interest Reserve Account, the Insurance Policies, any REO
Properties or beneficial interests therein and other items referred to in
Section 2.1(a) hereof), REMIC II, REMIC III, and such amounts as shall from time
to time be held in the Excess Interest Sub-account and any Excess Interest on
the Mortgage Loans. The Trust shall not include any Non-Serviced Companion
Mortgage Loan, any B Note, any interest of the holders of a B Note, any A/B Loan
Custodial Account or any Serviced Companion Mortgage Loan, any interest of the
holders of a Serviced Companion Mortgage Loan or any Serviced Companion Mortgage
Loan Custodial Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage Loan
(including REO Mortgage Loans and Defeasance Loans), the portion of the Trustee
Fee Rate applicable to such month (determined using the same interest accrual
methodology (other than the rate of accrual) that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of each such Mortgage Loan immediately before the Due Date
occurring in such month; provided that a portion of the Trustee Fee agreed upon
between the Trustee and the Paying Agent shall be applied to pay the Paying
Agent Fee.
"TRUSTEE FEE RATE" means 0.00125% per annum (which includes the Paying
Agent Fee).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of "Mortgage File" hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related Serviced Companion Mortgage Loan and the
related B Note) and any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the term
"Trustee Mortgage File" is used to refer to documents actually received by
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the Trustee or a Custodian on its behalf, such terms shall not be deemed to
include such documents required to be included therein unless they are actually
so received.
"U-HAUL PORTFOLIO COMPANION LOAN" means, the notes secured by the
U-Haul Portfolio Pari Passu Mortgage on a pari passu basis with the U-Haul
Portfolio Pari Passu Loan and which is not included in the Trust. The U-Haul
Portfolio Companion Loan is not a "Mortgage Loan."
"U-HAUL PORTFOLIO PARI PASSU LOAN" means, the Mortgage Loan designated
as Mortgage Loan Nos. 3-163 on the Mortgage Loan Schedule and which is secured
on a pari passu basis with the U-Haul Portfolio Companion Loan pursuant to the
U-Haul Portfolio Pari Passu Mortgage. The U-Haul Portfolio Pari Passu Loan is a
"Mortgage Loan."
"U-HAUL PORTFOLIO PARI PASSU MORTGAGE" means, the Mortgage securing
the U-Haul Portfolio Companion Loan and the U-Haul Portfolio Pari Passu Loan.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Greenwich Capital Markets, Inc and SunTrust Capital
Markets, Inc., or its successors in interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust Fund as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"UNPAID INTEREST" means, on any Distribution Date with respect to any
Class (or in the case of (i) Classes A-2A and A-2B and (ii) Classes A-4A and
A-4B, such classes collectively or individually as the context may require) of
Interests or Certificates (other than the Residual Certificates), the portion of
Distributable Certificate Interest for such Class remaining unpaid as of the
close of business on the preceding Distribution Date, plus one month's interest
thereon at the applicable Pass-Through Rate.
"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA, provided that such change need not be implemented
prior to the date that is three (3) months following the adoption of such change
by the CMSA) prepared by the Servicer Report Administrator (combining reports in
such forms prepared by each Master Servicer and the Special Servicer (with
respect to Specially Serviced Mortgaged Loans and REO Properties)): (a)
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the following electronic files; (i) a Loan Setup File (with respect to the
initial Distribution Date only); and (ii) a Loan Periodic Update File; and (b)
the following supplemental reports: (i) a Delinquent Loan Status Report, (ii) an
Historical Loan Modification Report, (iii) an Historical Liquidation Report,
(iv) an REO Status Report, (v) a CMSA Loan Level Reserve/LOC Report and (vi) an
Advance Recovery Report.
"USAP" shall have the meaning set forth in Section 8.13.
"XXXXX FARGO" has the meaning set forth in the Preliminary Statement
hereto.
"XXXXX FARGO LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"XXXXX FARGO MASTER SERVICER" has the meaning set forth in the
preamble hereto.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"WORKOUT-DELAYED REIMBURSEMENT AMOUNT" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note, equal to the product of (x) 1.0% and (y) the amount of
each collection of interest (other than default interest and any Excess
Interest) and principal received (including any Condemnation Proceeds received
and applied as a collection of such interest and principal) on such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a) Calculations
required to be made by the Paying Agent pursuant to this Agreement with respect
to any Mortgage Loan, Serviced Companion Mortgage Loan or B Note shall be made
based upon current information as to the terms of such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note and reports of payments received from the
applicable Master Servicer on such Mortgage Loan, Serviced Companion Mortgage
Loan and B Note and payments to be made to the Paying Agent as supplied to the
Paying Agent by the applicable Master Servicer. The Paying Agent shall not be
required to recompute, verify or recalculate the information supplied to it by
the applicable Master Servicer and may conclusively rely upon such information
in making such calculations. If, however, a Responsible Officer of the Paying
Agent has actual knowledge of an error in the calculations, the Paying Agent
shall inform the applicable Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan,
Serviced Companion Mortgage Loan or B Note documents (or the related
Intercreditor Agreement or related Loan Pair Intercreditor Agreement, as
applicable), or as otherwise provided
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in the definition of Liquidation Realized Loss, any amounts (other than escrow
and reserve deposits and reimbursements of lender advances and expenses
(excluding, for the avoidance of doubt, any Liquidation Fee or Work-Out Fee)
received in respect of a Mortgage Loan, a Serviced Companion Mortgage Loan or a
B Note as to which a default has occurred and is continuing shall be applied
first to overdue interest due with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note at the Mortgage Rate thereof, next to current
interest due with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note at the Mortgage Rate thereof, next to the reduction of the
Principal Balance of such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note to zero if such Mortgage Loan, Serviced Companion Mortgage Loan or B Note
has been accelerated and in respect of any scheduled payments of principal then
due to the extent that such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note has not yet been accelerated, next to any default interest and other
amounts due on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note
and finally to Late Fees due with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note. The foregoing allocations are intended to
govern loan level allocations but shall not govern allocations of such amounts
at the trust level for the purpose of determining Principal Distribution Amounts
or Distributable Certificate Interest.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate shall be calculated based upon a 360-day year consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to eight
decimal places, rounded if necessary. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
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(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD LOANS. Notwithstanding any provision of this
Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal on the Anticipated Repayment Date as specifically provided for in the
related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither of the Master Servicers nor the Special Servicer shall
take any enforcement action with respect to the payment of Excess Interest
unless the taking of such action is consistent with the Servicing Standard and
all other amounts due under such Mortgage Loan have been paid, and, in the good
faith and reasonable judgment of the applicable Master Servicer and the Special
Servicer, as the case may be, the Liquidation Proceeds expected to be recovered
in connection with such enforcement action will cover the anticipated costs of
such enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan after its Anticipated Repayment Date,
the applicable Master Servicer or the Special Servicer, as the case may be,
shall be permitted, in its discretion, to waive in accordance with Section 8.18
and Section 9.5 hereof, all or any accrued Excess Interest if, prior to the
related Maturity Date, the related Mortgagor has requested the right to prepay
the Mortgage Loan in full together with all payments required by the Mortgage
Loan in connection with such prepayment except for all or a portion of accrued
Excess Interest, provided that the applicable Master Servicer's or the Special
Servicer's determination to waive the right to such accrued Excess Interest is
in accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The applicable Master Servicer or the Special Servicer, as the case may
be, will have no liability to the Trust, the Certificateholders or any other
person so long as such determination is based on such criteria.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B
MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the related Loan
Pair Intercreditor Agreement or the related Intercreditor Agreement, if a
Serviced Pari Passu Mortgage Loan or B Note, as applicable, is no longer part of
the Trust Fund, the new holder of such Serviced Pari Passu Mortgage Loan or B
Note, as applicable, shall negotiate one or more new servicing agreements with
the applicable Master Servicer and the Special Servicer, provided that, prior to
entering into any such new servicing agreement, the new holder of such Serviced
Pari Passu Mortgage Loan or B Note, as applicable, shall obtain and provide to
the holder of the
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related Serviced Companion Mortgage Loan and/or B Note written confirmation from
each rating agency then rating any securitization relating to such Serviced
Companion Mortgage Loan and/or B Note providing that such new servicing
agreement will not result in the downgrade, qualification or withdrawal of its
then-current ratings of any securities issued in such securitization; provided,
that prior to such time the applicable Master Servicer and the Special Servicer
shall continue to service the related Loan Pair and/or A/B Mortgage Loan to the
extent provided in the related Loan Pair Intercreditor Agreement or the related
Intercreditor Agreement, as applicable.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the applicable
Master Servicer and the Special Servicer under Article VIII and Article IX and
the obligation of the applicable Master Servicer to make Advances, insofar as
such rights, duties and obligations relate to any A/B Mortgage Loan (including
both the related A Note and the related B Note) or Loan Pair, shall terminate
upon the earliest to occur of the following with respect to such A/B Mortgage
Loan or Loan Pair, as the case may be: (i) any repurchase of or substitution for
the related A Note or Serviced Pari Passu Mortgage Loan by the applicable Seller
pursuant to Section 2.3, (ii) any purchase of the related A Note by the owner of
the related B Note pursuant to the terms of the related Intercreditor Agreement
and (iii) any payment in full of any and all amounts due (or deemed due) under
the related A Note or Serviced Pari Passu Mortgage Loan (or its successor REO
Mortgage Loan) (including amounts to which the holder of such A Note or Serviced
Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement
or related Loan Pair Intercreditor Agreement), as applicable; provided, however,
that this statement shall not limit (A) the duty of the applicable Master
Servicer or the Special Servicer to deliver or make available the reports
otherwise required of it hereunder with respect to the Collection Period in
which such event occurs or (B) the rights of the applicable Master Servicer or
the Special Servicer that may otherwise accrue or arise in connection with the
performance of its duties hereunder with respect to such A/B Mortgage Loan or
Loan Pair prior to the date on which such event occurs.
(c) In connection with any purchase described in clause (ii) of
subsection (b) or an event described in clause (iii) of subsection (b), the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to (in the case of a purchase under such clause (ii)) the related
purchaser (provided that the related purchaser shall have paid the full amount
of the applicable purchase price) or (in the case of such clause (iii)) to the
holder of the related Serviced Companion Mortgage Loan or B Note (if then still
outstanding), upon delivery to them of a receipt executed by such purchaser or
holder, all portions of the Mortgage File and other documents pertaining to such
Loan Pair or A/B Mortgage Loan, as applicable, possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to such purchaser or holder (or
the designee of such purchaser or holder) in the same manner, and pursuant to
appropriate forms of assignment, substantially similar to the manner and forms
pursuant to which documents were previously assigned to the Trustee by the
related Seller, but in any event, without recourse, representation or warranty;
provided that such tender by the Trustee shall be conditioned upon its receipt
from the applicable Master Servicer of a Request for Release. The applicable
Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, convey to such purchaser or such holder any deposits then held in an
Escrow Account relating to the applicable A/B Mortgage Loan or Loan Pair. If a
Serviced Pari Passu Mortgage Loan and the related Serviced Companion Mortgage
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Loan or an A Note and the related B Note under the applicable Mortgage Loan are
then REO Mortgage Loans, then the Special Servicer shall, and is also hereby
authorized and empowered by the Trustee to, convey to such purchaser or such
holder, in each case, to the extent not needed to pay or reimburse the
applicable Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent in accordance with this Agreement, deposits then held in the REO Account
insofar as they relate to the related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of a Master Servicer, the Special Servicer, the Trustee, or the Paying
Agent, as applicable, primarily to the administration of the Trust Fund or any
REMIC formed hereunder or any grantor trust or to any determination respecting
the amount, payment or avoidance of any tax under the REMIC Provisions or
provisions relating to the grantor trust or the actual payment of any REMIC tax
or expense or the grantor trust tax or expense with respect to any REMIC formed
hereunder, then such expense shall not be allocated to, deducted or reimbursed
from, or otherwise charged against the holder of any Serviced Companion Mortgage
Loan or B Note and such holder shall not suffer any adverse consequences as a
result of the payment of such expense.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, a Certificate Account, the Reserve
Account and the Interest Reserve Account, (ii) the Depositor's rights under each
Mortgage Loan Purchase Agreement that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the
Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor
Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any
Non-Serviced Mortgage Loan and (v) all other assets included or to be included
in REMIC I for the benefit of REMIC II and REMIC III or the Excess Interest
Grantor Trust for the benefit of the Class T Certificates. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans and due after the Cut-Off Date. The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and is
intended by the parties to constitute a sale. In connection with the initial
sale of the Certificates by the Depositor, the purchase price to be paid
includes a portion attributable to interest accruing on the Certificates from
and after the Cut-Off Date. The transfer and assignment of any Non-Serviced
Mortgage Loan to the Trustee and the right to service such Mortgage Loans are
subject to the terms and conditions of the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan
Intercreditor Agreement, and the
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Trustee, by the execution and delivery of this Agreement, hereby agrees that
such Mortgage Loans remain subject to the terms of each Non-Serviced Mortgage
Loan Intercreditor Agreement and, with respect to each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan, each Loan Pair Intercreditor
Agreement.
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Trustee the remaining documents constituting the
Mortgage File for each Mortgage Loan within the time period set forth therein.
None of the Trustee, the Fiscal Agent, the Paying Agent, any Custodian, any
Master Servicer or the Special Servicer shall be liable for any failure by any
Seller or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The applicable Seller shall, at the expense of such Seller as to
each of its respective Mortgage Loans, promptly (and in any event within 45 days
following the receipt thereof) cause to be submitted for recording or filing
(except with respect to any Mortgage that has been recorded in the name of MERS
or its designees), as the case may be, in the appropriate public office for real
property records or UCC financing statements, as appropriate, each assignment to
the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition
of "Mortgage File;" provided that if the related Mortgage and UCC financing
statements have been recorded in the name of MERS or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, each Seller has agreed in the applicable Mortgage Loan Purchase
Agreement to take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording or filing; provided
that in those instances where the public recording office retains the original
Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC
financing statements, the applicable Seller shall obtain therefrom a certified
copy of the recorded original. The applicable Seller shall forward copies
thereof to the Trustee, the applicable Master Servicer and the Special Servicer
and, if recorded in the name of MERS, shall deliver to the applicable Master
Servicer and the Special Servicer, within 45 days of the Closing Date, evidence
confirming that the Trustee is shown as the owner on the record of MERS. If any
such document or instrument is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, the applicable Seller shall, pursuant
to the applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to
be prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the applicable Seller shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate. After the applicable Seller has caused
the Trustee to be identified on the records of MERS as the owner of a Mortgage,
it shall be the sole responsibility of the related Master Servicer to ensure
that subsequent relevant events relating to the Mortgage (as, for
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example, assumptions and partial releases) are properly registered with MERS
throughout the term of the related Mortgage Loan for so long as the Mortgage
Loan is an asset of the Trust.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit 5 to
the related Mortgage Loan Purchase Agreement in favor of the Trustee, the
applicable Master Servicer and the Special Servicer to empower the Trustee and,
in the event of the failure or incapacity of the Trustee, the applicable Master
Servicer or the Special Servicer, to submit for recording, at the expense of the
applicable Seller, any mortgage loan documents required to be recorded as
described in the preceding paragraph and any intervening assignments with
evidence of recording thereon that are required to be included in the Mortgage
Files (so long as original counterparts have previously been delivered to the
Trustee). The Sellers agree to reasonably cooperate with the Trustee, the
applicable Master Servicer and the Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The Trustee and each other party
hereto agrees that no such power of attorney shall be used with respect to any
Mortgage Loan by or under authorization by any party hereto except to the extent
that the absence of a document described in the second preceding sentence with
respect to such Mortgage Loan remains unremedied as of the earlier of (i) the
date that is 180 days following the delivery of notice of such absence to the
related Seller, but in no event earlier than 18 months from the Closing Date,
and (ii) the date (if any) on which such Mortgage Loan becomes a Specially
Serviced Mortgage Loan; provided, that the Trustee, the applicable Master
Servicer and the Special Servicer may use such power of attorney to the extent
reasonably necessary in connection with any assumption, modification or
defeasance of a Mortgage Loan. The Trustee shall submit such documents for
recording, at the related Seller's expense, after the periods set forth above;
provided, however, the Trustee shall not submit such assignments for recording
if the applicable Seller produces evidence that it has sent any such assignment
for recording and certifies that it is awaiting its return from the applicable
recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes and that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the applicable Master Servicer on its behalf, on or before the date
that is 45 days following the Closing Date and shall be held by the applicable
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders. To the extent delivered to the applicable Master Servicer by
the related Seller, the Servicer Mortgage File, will include, to the extent
required to be (and actually) delivered to the applicable Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the Mortgage
Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance policies or
certificates (as applicable), the property inspection reports, any financial
statements on the property, any escrow analysis, the tax bills, the Appraisal,
the environmental report, the engineering report, the asset summary, financial
information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies. Delivery
of any of the foregoing documents to a sub-servicer shall be deemed delivery to
the applicable Master Servicer and satisfy the Depositor's obligations under
this Section 2.1(d). None of the applicable Master
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Servicer or the Special Servicer shall have any liability for the absence of any
of the foregoing items from the Servicing Mortgage File if such item was not
delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMC Loans
from MSMC, the PMCF Loans from PMCF, the Xxxxx Fargo Loans from Xxxxx Fargo and
the SunTrust Loans from SunTrust. The Depositor will deliver or cause to be
delivered the original Mortgage Notes (or lost note affidavits and indemnities
with copies of the related Mortgage Notes, as described in the definition of
"Mortgage File") relating to the MSMC Loans to the Trustee, endorsed as
otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver or cause to be delivered the original
Mortgage Notes (or lost note affidavits and indemnities with copies of the
related Mortgage Notes, as described in the definition of "Mortgage File")
relating to the PMCF Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver or cause to be delivered the original Mortgage Notes (or lost note
affidavits and indemnities with copies of the related Mortgage Notes, as
described in the definition of "Mortgage File") relating to the Xxxxx Fargo
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver or cause to be
delivered the original Mortgage Notes (or lost note affidavits and indemnities
with copies of the related Mortgage Notes, as described in the definition of
"Mortgage File") relating to the SunTrust Loans to the Trustee, endorsed as
otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
MSMC, PMCF, Xxxxx Fargo and SunTrust, as applicable, are required under the
Mortgage Loan Purchase Agreements to deliver or cause to be delivered
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the MSMC Loans
shall be deemed to have been transferred from MSMC to the Depositor, the PMCF
Loans shall be deemed to have been transferred from PMCF to the Depositor, the
Xxxxx Fargo Loans shall be deemed to have been transferred from Xxxxx Fargo to
the Depositor, the SunTrust Loans shall be deemed to have been transferred from
SunTrust to the Depositor, and all Mortgage Loans shall be deemed to have been
transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it, (ii) the
REMIC I Regular Interests, and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present
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and future Certificateholders. To the extent that the contents of the Mortgage
File for any A Note relate to the corresponding B Note, the Trustee, or the
Custodian on the Trustee's behalf, will also hold such Mortgage File in trust
for the benefit of the holder of the related B Note; provided, that if a B Note
remains outstanding following payment in full of the amounts due under the
related A Notes, the Mortgage Loan documents relating to such A/B Mortgage Loan
(exclusive of any such documents related solely to the A Notes) shall be
assigned to the holder of the B Note or its designee. To the extent that the
contents of the Mortgage File for any Serviced Pari Passu Mortgage Loan relate
to the corresponding Serviced Companion Mortgage Loan, the Trustee, or the
Custodian, on the Trustee's behalf, will also hold such Mortgage File in trust
for the benefit of the holder of the related Serviced Companion Mortgage Loan.
On the Closing Date in respect of the Initial Certification, and
within 90 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the applicable Master Servicer, the Special
Servicer, the Operating Adviser and the holder of any Serviced Companion
Mortgage Loan a certification (the "Initial Certification" and the "Final
Certification", respectively, in the respective forms set forth as Exhibit B-1
and Exhibit B-2 hereto), which shall be in electronic format (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions attached
thereto, to the effect that: (A) all documents pursuant to clause (i) of the
definition of "Mortgage File" are in its possession, (B) such documents have
been reviewed by it and have not been materially mutilated, damaged, defaced,
torn or otherwise physically altered, and such documents relate to such Mortgage
Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of
the definition of "Mortgage File", and (ii) in the case of the Final
Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in the schedule of exceptions attached thereto, to
the effect that: (A) (I) all documents pursuant to clauses (i), (ii), (iv), (v),
(vi), (viii), (x) and (xii) of the definition of "Mortgage File" required to be
included in the Mortgage File (to the extent required to be delivered pursuant
to this Agreement), and with respect to all documents specified in the other
clauses of the definition of "Mortgage File" to the extent known by a
Responsible Officer of the Trustee to be required pursuant to this Agreement,
are in its possession, and (II) for each Mortgage recorded in the name of MERS
or its designee, the Trustee is shown as the transferee of the related Mortgage
on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS, (B) such documents have
been reviewed by it and have not been materially mutilated, damaged, defaced,
torn or otherwise physically altered, and such documents relate to such Mortgage
Loan, and (C) each Mortgage Note has been endorsed. Notwithstanding the
foregoing, the delivery of a commitment to issue a Title Insurance Policy in
lieu of the delivery of the actual Title Insurance Policy shall not be
considered a Material Document Defect with respect to any Mortgage File if such
actual Title Insurance Policy is delivered to the Trustee or a Custodian on its
behalf not later than the 180th day following the Closing Date.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of "Mortgage File," with evidence of recording thereon) or otherwise
provide evidence of such recordation to the applicable Master Servicer, the
Special Servicer, the Operating Adviser and each Seller, and if any recorded
assignment of Mortgage has not been received by the Trustee by such time, the
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Trustee shall provide information in such confirmation on the status of missing
assignments. The Trustee agrees to use reasonable efforts to submit for
recording any unrecorded assignments of Mortgage that have been delivered to it
(including effecting such recordation process through or cooperating with the
applicable Seller), such recordation to be at the expense of the applicable
Seller; provided, however, that the Trustee shall not submit for recording any
such assignments if the applicable Seller produces evidence that it has sent any
such assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and (iii) the second anniversary of the Closing
Date, and shall provide such updated schedule of exceptions (which may be in
electronic format) to each of the Depositor, each Seller (as to its respective
Mortgage Loans only), each Master Servicer, the Special Servicer, the Operating
Adviser, the Paying Agent and the holder of any Serviced Companion Mortgage Loan
on or about the date that is 180 days after the Closing Date and then again
every 90 days thereafter (until the earliest date specified above). Upon
request, the Paying Agent, shall promptly forward a copy thereof to each
Certificateholder in the Controlling Class and shall deliver or make available a
copy thereof to other Certificateholders. Promptly, and in any event within two
Business Days, following any request therefor by the Depositor, a Master
Servicer, the Special Servicer, the Operating Adviser or the holder of any
Serviced Companion Mortgage Loan that is made later than two years following the
Closing Date, the Custodian (or the Trustee) shall deliver an updated schedule
of exceptions, which may be in electronic format (to the extent the prior
schedule showed exceptions), to the requesting Person and the Paying Agent,
which shall make available a copy thereof. Upon request, the applicable Master
Servicer shall provide to the Trustee the names and addresses of each holder of
a Serviced Companion Mortgage Loan of which the applicable Master Servicer has
received notice in accordance with this Agreement and/or the related Loan Pair
Intercreditor Agreement.
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The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreement, and, in
either case, either (i) such defect or breach materially and adversely affects
the interests of the holders of the Certificates in the related Mortgage Loan or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect", and such a
breach described in the preceding clause (i) or (ii), a "Material Breach") such
party shall give prompt written notice to the other parties hereto, to the
Operating Adviser and to each Rating Agency subject to the terms of the
applicable Mortgage Loan Purchase Agreement. Promptly (but in any event within
three Business Days) upon becoming aware of any such Material Document Defect or
Material Breach, the applicable Master Servicer shall, and the Special Servicer
may, request that the related Seller, not later than 90 days from such Seller's
receipt of the notice of such Material Document Defect or Material Breach, cure
such Material Document Defect or Material Breach, as the case may be, in all
material respects; provided, however, that if such Material Document Defect or
Material Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90-day period, and such Material Document Defect
or Material Breach would not cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code) but the related Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days unless, solely in the case of
a Material Document Defect, (x) the Mortgage Loan is then a Specially Serviced
Mortgage Loan and a Servicing Transfer Event has occurred as a result of a
monetary default or as described in clause (ii) or clause (v) of the definition
of "Servicing Transfer Event" and (y) the Material Document Defect was
identified in a certification delivered to the applicable Seller by the Trustee
pursuant to Section 2.2 not less than 90 days prior to the delivery of the
notice of such Material Document Defect. The parties acknowledge that neither
delivery of a certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller will be obligated, not later than the last day of such permitted
cure period, to (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from the Trust at the applicable Purchase Price in accordance with the related
Mortgage Loan Purchase Agreement, or (ii) if within the three-month period
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commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at the related Seller's option, without recourse (other than the
representations and warranties made with respect thereto), replace such Mortgage
Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Material Document Defect or Material Breach would cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence or the previous paragraph, the repurchase must occur
within 85 days from the date the related Seller was notified of the defect and
substitution must occur within the sooner of (i) 85 days from the date the
related Seller was notified of the defect or (ii) two years from the Closing
Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the applicable
Master Servicer shall not execute any instrument effecting the substitution
unless the related Seller has delivered to the Trustee for such Qualifying
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage, and such other documents and agreements as are required
by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1, and
the applicable Master Servicer shall be entitled to rely on statements and
certifications from the Trustee for this purpose. No substitution may be made in
any calendar month after the Determination Date for such month. Monthly payments
due with respect to Qualifying Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust and will be retained by the
applicable Master Servicer and remitted by the applicable Master Servicer to the
related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the Scheduled
Payment due on the related Deleted Mortgage Loan for such month and thereafter
the related Seller shall be entitled to retain all amounts received in respect
of such Deleted Mortgage Loan.
The applicable Master Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon
such amendment the applicable Master Servicer shall deliver or cause to be
delivered such amended Mortgage Loan Schedule to the Trustee, the Paying Agent
and the Special Servicer. Upon such substitution, the Qualifying Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects. Upon receipt of the Trustee Mortgage File pertaining to any Qualifying
Substitute Mortgage Loans, the Trustee shall release the Trustee Mortgage File
relating to such Deleted Mortgage Loan to the related Seller, and the Trustee
(and the Depositor, if necessary) shall execute and deliver such instruments of
transfer or assignment in the form presented to it, in each case without
recourse, representation or warranty, as shall be necessary to vest title
(provided, however, if applicable, the applicable Master Servicer will take all
necessary action to register the transfer of ownership of the Mortgage related
to such Deleted Mortgage Loan on the records of MERS) (to the extent that such
title was transferred to the Trustee or the Depositor) in the related Seller or
its designee to any Deleted Mortgage Loan (including any property acquired in
respect thereof or any insurance policy proceeds relating thereto) substituted
for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and
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cross-defaulted with one or more other Mortgage Loans ("Crossed Mortgage Loans")
and (z) the applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such Crossed
Mortgage Loans (without regard to this paragraph), then the applicable document
defect or breach (as the case may be) shall be deemed to constitute a Material
Document Defect or Material Breach (as the case may be) as to each such Crossed
Mortgage Loan for purposes of the above provisions, and the related Seller shall
be obligated to repurchase or replace each such Crossed Mortgage Loan in
accordance with the provisions above unless, in the case of such breach or
document defect, the Seller (A) provides a Nondisqualification Opinion to the
Trustee at the expense of the Seller and (B) both of the following conditions
would be satisfied if the related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (i) the
Debt Service Coverage Ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x below the
debt service coverage ratio for all such other Mortgage Loans (including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus Supplement
and (B) the debt service coverage ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement, and (ii) the Loan-to-Value Ratio for
all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the greater of (A) the loan-to-value ratio, expressed as a whole number
(taken to one decimal place), for all such Crossed Mortgage Loans (including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus Supplement
plus 10% and (B) the loan-to-value ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)), at the time of repurchase or replacement. The
determination of the applicable Master Servicer as to whether the conditions set
forth above have been satisfied shall be conclusive and binding in the absence
of manifest error. The applicable Master Servicer will be entitled to cause to
be delivered, or direct the related Seller to (in which case the related Seller
shall) cause to be delivered to the applicable Master Servicer, an Appraisal of
any or all of the related Mortgaged Properties for purposes of determining
whether the condition set forth in clause (ii) above has been satisfied, in each
case at the expense of the related Seller if the scope and cost of the Appraisal
is approved by the related Seller (such approval not to be unreasonably
withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee continues to hold any Crossed Mortgage Loan, the applicable Seller
and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to
forbear from enforcing any remedies against the other's Primary Collateral but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing Mortgage Loans still held by the Trustee, so long as
such exercise does not impair the ability of the other party to exercise its
remedies against its Primary Collateral. If the exercise of remedies by one
party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Mortgage Loan or
Mortgage Loans held by such party, then both parties have agreed to forbear from
exercising such remedies until the loan documents evidencing and securing the
relevant Mortgage Loans can be modified in a manner that complies with the
applicable Mortgage Loan Purchase Agreement to remove the threat of material
impairment as a result of the exercise of remedies.
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Any reserve or other cash collateral or letters of credit securing the Crossed
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule VIII hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy thereof)
that appears to be regular on its face, unless there is included in the Mortgage
File a certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; (c) the absence from the Mortgage File of the item called
for by paragraph (viii) of the definition of "Mortgage File" (or with respect to
any Non-Serviced Mortgage Loan, a copy thereof). If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a), the
applicable Master Servicer) will take the steps described elsewhere in this
section, including the giving of notices to the Rating Agencies, the parties
hereto and, to the extent any Material Document Defect relates to a Serviced
Pari Passu Mortgage Loan, the holder of the related Serviced Companion Mortgage
Loan, and making demand upon the related Seller for the cure of the document
defect or repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related Mortgage Loan Purchase Agreement that any modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense to any
repurchase claim nor shall such modification and workout change the Purchase
Price due from the related Seller for any repurchase claim. In the event of any
such modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
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Date, provided that no amount shall be paid by the related Seller in respect of
any Work-Out Fee if a Liquidation Fee already comprises (or will comprise) a
portion of the Purchase Price. The related Seller shall be notified promptly and
in writing by (i) the Trustee of any notice that it receives that an Option
Holder intends to exercise its Option to purchase the Mortgage Loan in
accordance with and as described in Section 9.36 hereof and (ii) the Special
Servicer of any offer that it receives to purchase the applicable REO Property,
each in connection with such liquidation. Upon the receipt of such notice by the
related Seller, the related Seller shall then have the right to purchase the
related Mortgage Loan or REO Property, as applicable, from the Trust at a
purchase price equal to, in the case of clause (i) of the immediately preceding
sentence, the Option Purchase Price or, in the case of clause (ii) of the
immediately preceding sentence, the amount of such offer. Notwithstanding
anything to the contrary contained herein or in the related Mortgage Loan
Purchase Agreement, the right of any Option Holder to purchase such Mortgage
Loan shall be subject and subordinate to the Seller's right to purchase such
Mortgage Loan as described in the immediately preceding sentence. The related
Seller shall have five (5) Business Days to notify the Trustee or the Special
Servicer, as applicable, of its intent to so purchase the Mortgage Loan or
related REO Property from the date that it was notified of such intention to
exercise such Option or of such offer. The Special Servicer shall be obligated
to provide the related Seller with any appraisal or other third party reports
relating to the Mortgaged Property within its possession to enable the related
Seller to evaluate the related Mortgage Loan or REO Property. Any sale of the
related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the
related REO Property, to a Person other than the related Seller shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the related Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the related Seller to or for the benefit of such
Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the applicable Master Servicer shall notify the related Seller of
the discovery of the Material Document Defect or Material Breach and the related
Seller shall have 90 days to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
related Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the related Seller's right to
purchase such REO Property shall apply. After a final liquidation of the
Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction issues
a final order after the expiration of any applicable appeal period that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan (a "Final Judicial Determination") or the related Seller
otherwise accepts liability, then, but in no event later than the Termination of
the Trust pursuant to Section 9.30 hereof, the related Seller will be obligated
to pay to the Trust the difference between any Liquidation Proceeds received
upon such liquidation (including those arising from any sale to the related
Seller) and the Purchase Price.
In connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 2.3, the Special Servicer shall not
receive a Liquidation Fee in connection with such sale or other liquidation
until a final determination has been made, as set forth in the preceding
paragraph, as to whether the Seller is or was obligated to repurchase such
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Mortgage Loan or REO Property. Upon such determination, the Special Servicer
shall be entitled to collect a Liquidation Fee (i) with respect to a
determination that the Seller is or was obligated to repurchase, based upon the
full Purchase Price of the related Mortgage Loan, including all related expenses
up to the date the remainder of such Purchase Price is actually paid, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that the Seller is not or was not obligated to repurchase (or the Trust decides
that it will no longer pursue a claim against the Seller for repurchase), based
upon the Liquidation Proceeds as received upon the actual sale or liquidation of
such Mortgage Loan, with such amount to be paid from amounts in the Collection
Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Master Servicer will determine the amount (if any) by which the
aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into a Certificate Account in the month of substitution,
without any reimbursement thereof. In addition, the Depositor shall cause the
related Seller to deposit into a Certificate Account, together with such
shortage, if any, an amount equal to interest on the Deleted Mortgage Loans at a
rate equal to the sum of the applicable Mortgage Rate from the Due Date as to
which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of unreimbursed Servicing Advances,
amounts required to be paid to the Special Servicer but remaining unpaid or
unreimbursed, and interest on unreimbursed Advances with respect to such Deleted
Mortgage Loans at the Advance Rate. The Depositor shall cause the related
Seller, in the case of the Mortgage Loans, to give notice in writing
(accompanied by an Officer's Certificate as to the calculation of such shortage)
to the Trustee, the Paying Agent and the applicable Master Servicer of such
event which notice shall be accompanied by an Officer's Certificate as to the
calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the applicable
Master Servicer shall designate a Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the applicable
Master Servicer and the Special Servicer shall each tender to the related
Seller, upon delivery to each of them of a receipt executed by such Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the Mortgage
File shall be endorsed or assigned to the extent necessary or appropriate to the
related Seller or its designee in the same manner, and pursuant to appropriate
forms of assignment, substantially similar to the manner and forms pursuant to
which documents were previously assigned to the Trustee, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the applicable Master
Servicer of a Request for Release. The applicable 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
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the Trustee or any of them, the endorsements and assignments contemplated by
this Section 2.3, and the Trustee shall execute and deliver any powers of
attorney necessary to permit the applicable Master Servicer to do so. The
applicable Master Servicer shall, and is also hereby authorized and empowered by
the Trustee to, reconvey to the related Seller any deposits then held in an
Escrow Account relating to the Mortgage Loan being repurchased or substituted
for. The applicable Master Servicer shall indemnify the Trustee for all costs,
liabilities and expenses (including attorneys' fees) incurred by the Trustee in
connection with any negligent or intentional misuse of any such powers of
attorney by the applicable Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) MSMC, as Seller under the Mortgage
Loan Purchase Agreement I will be providing the remedies with respect to the
MSMC Loans, (ii) PMCF, as Seller under the Mortgage Loan Purchase Agreement II
will be providing the remedies with respect to the PMCF Loans, (iii) Xxxxx
Fargo, as Seller under the Mortgage Loan Purchase Agreement III will be
providing the remedies with respect to the Xxxxx Fargo Loans and (iv) SunTrust,
as Seller under the Mortgage Loan Purchase Agreement IV will be providing the
remedies with respect to the SunTrust Loans.
(d) The Trustee or its designee (which, with the applicable Master
Servicer's consent, may be a Master Servicer or which, with the Special
Servicer's consent, may be the Special Servicer) shall enforce the provisions of
this Section 2.3.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to each Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations
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under this Agreement or (ii) the business, operations, financial condition,
properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the Mortgage Loans in exchange for the
REMIC I Interests, (ii) the REMIC I Regular Interests in exchange for the REMIC
II Interests, (iii) the REMIC II Regular Interests in exchange for the REMIC III
Certificates and (iv) the right to receive Excess Interest in exchange for the
Class T Certificates.
SECTION 2.6 CERTAIN MATTERS RELATING TO NON-SERVICED MORTGAGE LOANS.
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of the
document delivery requirements set forth herein will be satisfied by the
delivery by the applicable Seller of copies of each such document specified
herein (other than the Mortgage Note (and all intervening endorsements)
evidencing the Mortgage Loan, with respect to which the originals shall be
required); provided, the document delivery requirements for the Assignment of
Mortgage, any assignment of Assignment of Leases and any UCC-2 or UCC-3
financing statement set forth herein will be satisfied by the delivery by the
applicable Seller of copies of such documents made in favor of the trustee of
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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(b) Promptly following the Closing Date, the Trustee shall send
written notice (substantially in the form of Exhibit DD attached hereto) with
respect to each Non-Serviced Mortgage Loan, to each of the respective master
servicer, special servicer and trustee for the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and the other holders of the related
Non-Serviced Companion Loans, each stating that, among other things, the Trustee
is the holder of the related Non-Serviced Mortgage Loan as of the Closing Date.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates and Class A-J Certificates will be
issuable in denominations of $25,000 initial Certificate Balance and in any
whole dollar denomination in excess thereof. The Class X-2 Certificates will be
issuable in denominations of $1,000,000. The Class X-1, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q and Class S Certificates will be issuable in
denominations of $100,000 initial Certificate Balance or initial Notional Amount
(as applicable) or in any whole dollar denomination in excess thereof. The Class
T, Class R-I, Class R-II and Class R-III Certificates will be issued in minimum
Percentage Interests of 10% and integral multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after
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the execution and delivery of this Agreement, the Depositor may deliver
Certificates to the Authenticating Agent for authentication and the
Authenticating Agent shall authenticate and deliver such Certificates as in this
Agreement provided and not otherwise. In the event that additional Certificates
need to be prepared at any time subsequent to the Closing Date, the Depositor
shall prepare, or cause to be prepared, deliver, or cause to be delivered, at
the Depositor's expense, any such additional Certificates. With respect to the
Class A Senior, Class X, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates that are issued in book-entry form, on the
Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class S Certificates that are issued in definitive form,
on the Closing Date, the Authenticating Agent upon the order of the Depositor
shall authenticate Definitive Certificates that are issued to the registered
holder thereof against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
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(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the 1933 Act and any applicable state
securities laws, or is otherwise made in accordance with the 1933 Act and such
state securities laws. If a transfer of any Non-Registered Certificate held as a
Definitive Certificate is to be made without registration under the 1933 Act
(other than in connection with the initial issuance of the Certificates or a
transfer of such Non-Registered Certificate by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit D-1 hereto and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer shall be made without registration under the 1933 Act,
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, either of the Master Servicers, the Special Servicer, the Paying
Agent, the Trustee or the Certificate Registrar in their respective capacities
as such). If a transfer of any interest in a Non-Registered Certificate that
constitutes a Book-Entry Certificate is to be made without registration under
the 1933 Act (other than in connection with the initial issuance of the
Certificates or a transfer of any interest in such Non-Registered Certificate by
the Depositor or any of its Affiliates), then the Certificate Owner desiring to
effect such transfer shall be required to obtain either (i) a certificate from
such Certificate Owner's prospective Transferee substantially in the form
attached as Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of
Counsel to the effect that such transfer may be made without registration under
the 1933 Act. None of the Depositor, the Fiscal Agent, the Paying Agent, the
Trustee, either of the Master Servicers, the Special Servicer or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of any
Certificate. Any Certificateholder or Certificate Owner desiring to effect a
transfer of Non-Registered Certificates or interests therein shall, and does
hereby agree to, indemnify the Depositor, each Underwriter, the Trustee, the
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Fiscal Agent, each Master Servicer, the Special Servicer the Paying Agent and
the Certificate Registrar against any liability that may result if the transfer
is not exempt from such registration or qualification or is not made in
accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to Title I of
ERISA or Section 4975 of the Code or any applicable federal, state or local law
("Similar Laws") materially similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), (B) in book-entry form to an Institutional Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to any Person
who is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate and is being sold to a Qualified
Institutional Buyer, the purchase and holding of such Certificate or interest
therein qualifies for the exemptive relief available under Sections I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, either of the Master Servicers, the Special Servicer or
the Certificate Registrar to any obligation in addition to those undertaken in
this Agreement. Each Person who acquires any Non-Investment Grade Certificate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to deliver to the Certificate Registrar (or, in the
case of an interest in a Non-Investment Grade Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with "plan
assets" of a Plan; or (ii) that, in the case of a Non-Investment Grade
Certificate, the purchase and holding of such Certificate or interest therein by
such person qualifies for the exemptive relief available under Sections I and
III of PTCE 95-60 or another exemption from the "prohibited transactions" rules
under ERISA by the U.S. Department of Labor or similar exemption under Similar
Laws.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
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(A) (1) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and a United
States Tax Person and shall promptly notify the Certificate Registrar
of any change or impending change in its status as a Permitted
Transferee and (2) each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Qualified Institutional
Buyer and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Qualified Institutional
Buyer.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is a Qualified
Institutional Buyer, that it is not acquiring its Ownership Interest
in the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, that it is a United States Tax Person, that if
such Transferee is a partnership, trust or disregarded entity for U.S.
federal income tax purposes, then each Person that may be allocated
income from a Residual Certificate is a United States Tax Person, that
it is not a foreign permanent establishment or fixed base, within the
meaning of any applicable income tax treaty, of any United States Tax
Person, that it has historically paid its debts as they have come due
and will continue to do so in the future, that it understands that its
tax liability with respect to the Residual Certificates may exceed
cash flows thereon and it intends to pay such taxes as they come due,
that it will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment
or fixed base, within the meaning of any applicable income tax treaty,
of such proposed Transferee or any other United States Tax Person,
that it will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 13 of
such Transfer Affidavit and Agreement are true or that Section 13 is
not applicable, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States Tax
Person, no Transfer of an Ownership Interest in a Residual Certificate
to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its
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Ownership Interest in such Residual Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit E-2 among other things stating that (x) it
has conducted a reasonable investigation of the financial condition of
the proposed Transferee and, as a result of the investigation, the
Transferor determines that the proposed Transferee had historically
paid its debts as they came due and found no significant evidence that
the proposed Transferee will not continue to pay its debts as they
come due in the future and, (y) it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee, is not a United
States Tax Person, is a foreign permanent establishment or fixed base,
within the meaning of any applicable income tax treaty, of any United
States Tax Person or is a Person with respect to which income on the
Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of any applicable
income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder", by
purchasing an Ownership Interest in such Certificate, agrees to give
the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Residual Certificate. None of the Trustee,
the Fiscal Agent, a Master Servicer, the Special Servicer, the
Certificate Registrar or the Paying Agent shall be under any liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 3.3(e) or
for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, and to
the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (F) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice
to the Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such noncomplying Holder shall promptly
endorse and deliver such
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Residual Certificate in accordance with the instructions of the
Certificate Registrar. Such purchaser may be the Certificate Registrar
itself or any Affiliate of the Certificate Registrar. The proceeds of
such sale, net of the commissions (which may include commissions
payable to the Certificate Registrar or its Affiliates), expenses and
taxes due, if any, will be remitted by the Certificate Registrar to
such noncomplying Holder. The terms and conditions of any sale under
this clause (G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
Each Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession or
reasonably available to it necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Residual Certificate to any Person
who is not a Permitted Transferee, including the information described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as among its
record holders at any time any Person which is not a Permitted Transferee. The
Person holding such Ownership Interest shall be responsible for the reasonable
compensation of each Master Servicer and the Paying Agent for providing such
information.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, each Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any of REMIC I, REMIC II or REMIC III to (x)
cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which
is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer
of a Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicers, the Special Servicer, the Trustee,
the Fiscal Agent, the Paying Agent or the Certificate Registrar shall have any
liability to the Trust arising from a transfer of any Certificate in reliance
upon a certification, ruling or Opinion of Counsel described in this Section
3.3; provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does
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not meet the qualifications of a permitted Holder of a Residual Certificate as
set forth in Section 3.3(e); provided, further, that the Certificate Registrar
shall not register the transfer of a Noneconomic Residual Interest if it shall
have received notice that the Transferor has determined, as a result of the
investigation under Section 3.3(e)(D), that the proposed Transferee has not paid
its debts as they came due or that it will not pay its debts as they come due in
the future. The Certificate Registrar shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restriction on transfer
or exchange of Certificates or any interest therein imposed under this Article
III or under applicable law other than to require delivery of the certifications
and/or opinions described in this Article III; provided, however, that the
Certificate Registrar shall not register the transfer of a Residual Certificate
if it has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth in
Section 3.3(e). The Certificate Registrar shall have no liability for transfers
(including without limitation transfers made through the book-entry facilities
of the Depository or between or among Participants or Certificate Owners) made
in violation of applicable restrictions, provided that the Certificate Registrar
has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide a Master Servicer, the
Special Servicer and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A)
any mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
issuance of any new Certificate under this Section 3.4, the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
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in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 3.4 shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, a Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser, the Paying Agent
and any agent of a Master Servicer, the Special Servicer, the Fiscal Agent, the
Paying Agent, the Trustee or the Operating Adviser may treat the Person in whose
name any Certificate is registered as of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither a Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the
Operating Adviser nor any agent of a Master Servicer, the Special Servicer, the
Fiscal Agent, the Trustee, the Paying Agent, or the Operating Adviser shall be
affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, a Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
a Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee or the Operating Adviser, as applicable, access during normal business
hours to a current list of the Certificateholders. The expense of providing any
such information requested by such Person shall be borne by the party requesting
such information and shall not be borne by the Certificate Registrar or the
Trustee. Every Certificateholder, by receiving and holding a Certificate, agrees
that the Certificate Registrar and the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class X-0X, Xxxxx X-0X, Xxxxx X-0X, Class A-AB,
Class A-3, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class X-1, Class X-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates, upon
original issuance, each shall be issued in the form of one or more Certificates
representing the Book-Entry Certificates, to be delivered to the Certificate
Registrar, as custodian for The Depository Trust Company (the "Depository"), the
initial Clearing Agency, by, or on behalf of, the Depositor, provided, that any
Non-Investment Grade Certificates sold to Institutional Accredited Investors
that are not Qualified Institutional Buyers will be issued as Definitive
Certificates. The Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the Depository, as the
initial Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's
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interest in the Certificates, except as provided in Section 3.9. Unless and
until Definitive Certificates have been issued to the Certificate Owners
pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, each Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class E, Class F, Class G, Class H and Class J Certificates sold to
Institutional Accredited Investors shall be represented by the Rule 144A-IAI
Global Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class S Certificates initially sold to Institutional
Accredited Investors that are not Qualified Institutional Buyers shall be
represented by IAI Definitive Certificates for such Class. The Certificates
evidenced by any Rule 144A-IAI Global Certificate or IAI Definitive Certificate
shall be subject to certain restrictions on transfer as set forth in Section 3.3
hereof and shall bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as
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nominee of the Depository. Not earlier than the Release Date, beneficial
interests in any Regulation S Temporary Global Certificate shall be exchangeable
for beneficial interests in the Regulation S Permanent Global Certificate for
such Class. Beneficial interests in any Regulation S Temporary Global
Certificate may be held only through Euroclear Bank or Clearstream Bank;
provided, however, that such interests may be exchanged for interests in the
Rule 144A-IAI Global Certificate for such Class in accordance with the
certification requirements described in Section 3.7(f). The Regulation S
Permanent Global Certificates shall be deposited with the Certificate Registrar,
as custodian for the Depository and registered in the name of Cede & Co. as
nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear Bank or Clearstream Bank (as applicable) a Regulation S
Certificate; provided, however, that any Certificate Owner that holds a
beneficial interest in a Regulation S Temporary Global Certificate on the
Release Date or on any such Distribution Date that has previously delivered a
Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to
its interest therein does not need to deliver any subsequent Regulation S
Certificate (unless the certificate previously delivered is no longer true as of
such subsequent date, and such Certificate Owner must promptly notify Euroclear
Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream
Bank, as applicable, shall be required to promptly deliver to the Certificate
Registrar a certificate substantially in the form of Exhibit I hereto to the
effect that it has received the requisite Regulation S Certificates for each
such Class, and no Certificate Owner (or transferee from any such Certificate
Owner) shall be entitled to receive an interest in the Regulation S Permanent
Global Certificate for such Class or any payment or principal or interest with
respect to its interest in such Regulation S Temporary Global Certificate prior
to the Certificate Registrar receiving such certification from Euroclear Bank or
Clearstream Bank with respect to the portion of the Regulation S Temporary
Global Certificate owned by such Certificate Owner (and, with respect to an
interest in the applicable Regulation S Permanent Global Certificate, prior to
the Release Date). After the Release Date, distributions due with respect to any
beneficial interest in a Regulation S Temporary Global Certificate shall not be
made to the holders of such beneficial interests unless exchange for a
beneficial interest in the related Regulation S Permanent Global Certificate is
improperly withheld or refused. No interest in a Regulation S Global Certificate
may be held by or transferred to a U.S. Person (as defined in Regulation S)
except for exchanges for a beneficial interest in the Rule 144A-IAI Global
Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only
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through, records maintained by the Depository or its nominee (with respect to
interests of Customers) and the records of Customers (with respect to interests
of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee, the Paying Agent and the Certificate Registrar shall not be
affected by any notice to the contrary. Except under the circumstance described
in Section 3.9, owners of beneficial interests in a Global Certificate will not
be entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear Bank or Clearstream Bank, as applicable, and the Depository, in the
form of an Exchange Certification (substantially in the form of Exhibit H
attached hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer of
its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as described herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear Bank or Clearstream Bank, as applicable,
in the form of an Exchange Certification, to exchange all or a portion of such
interest (in authorized denominations as set forth in Section 3.1(b)) for an
equivalent interest in the Regulation S Global Certificate for such Class in
connection with a transfer of its interest therein to a transferee that is
eligible to hold an interest in such Regulation S Global Certificate as
described herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule
to any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate by
the denominations of the Certificate or Certificates for which such exchange is
to be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
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SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Clearing Agency
notifies the Depositor and the Certificate Registrar in writing that the
Clearing Agency is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Clearing Agency through the Participants in writing (and the Clearing
Agency so advises the Depositor, the Certificate Registrar and each Master
Servicer in writing) that the continuation in global form of the Certificates
being evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Clearing Agency and request the Clearing
Agency to notify all Certificate Owners, through the applicable Participants, of
the occurrence of the event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Global Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates. None of the
Depositor, the Trustee, the Paying Agent, the Certificate Registrar or the
Fiscal Agent, shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
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ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the applicable Master Servicer and, if such Master Servicer does not make
such Advances, by the Trustee and if the Trustee does not make such Advances, by
the Fiscal Agent except to the extent that such Master Servicer, the Trustee or
the Fiscal Agent, as applicable, determines in accordance with Section 4.4
below, that any such Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the applicable Master
Servicer shall notify the Trustee and the Paying Agent if the P&I Advance Amount
for such Distribution Date is greater than zero, and the applicable Master
Servicer shall make a P&I Advance in respect of each Mortgage Loan of such
amount no later than the Master Servicer Remittance Date. It is understood that
the obligation of the applicable Master Servicer to make such P&I Advances is
mandatory and shall apply through any court appointed stay period or similar
payment delay resulting from any insolvency of the Mortgagor or related
bankruptcy. Notwithstanding the foregoing, the applicable Master Servicer shall
not be required to make such P&I Advance, if such Master Servicer determines, in
accordance with Section 4.4 below, that any such P&I Advance would be a
Nonrecoverable Advance and shall not make such P&I Advance if the Special
Servicer has determined in accordance with the Servicing Standard that such P&I
Advance if made would be a Nonrecoverable Advance and has directed the
applicable Master Servicer not to make such P&I Advance; provided that the
Special Servicer shall be under no obligation to make such determination. Such
determination shall be conclusive and binding on the Trustee, the Fiscal Agent
and the Certificateholders. The Special Servicer shall not make P&I Advances
under this Agreement. If the applicable Master Servicer fails to make a P&I
Advance that it is required to make under this Section 4.1, it shall promptly
notify the Trustee and the Paying Agent of such failure. If the Trustee fails to
make a P&I Advance that it is required to make under this Agreement, it shall
promptly notify the Fiscal Agent and the Paying Agent of such failure.
(b) If the applicable Master Servicer determines that there is a P&I
Advance Amount for a Distribution Date, such Master Servicer shall on the
related Master Servicer Remittance Date either (A) deposit in a Certificate
Account an amount equal to the P&I Advance Amount or (B) utilize funds in a
Certificate Account being held for future distributions or withdrawals to make
such Advance (or a combination of clauses (A) and (B) if the funds in such
Certificate Account being held for future distributions or withdrawals are
insufficient). Any funds being held in a Certificate Account for future
distribution or withdrawal and so used shall be replaced by the applicable
Master Servicer from its own funds by deposit in such Certificate Account on or
before any future Master Servicer Remittance Date to the extent that funds in
such Certificate Account on such Master Servicer Remittance Date shall be less
than payments to the Paying Agent or other Persons required to be made on such
date.
SECTION 4.1A P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE LOANS
AND SERVICED PARI PASSU MORTGAGE LOANS.
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With respect to the Non-Serviced Mortgage Loans and Serviced Pari
Passu Mortgage Loans (the "P&I Pari Passu Loans"), the applicable Master
Servicer shall make its determination that a P&I Advance previously made on any
P&I Pari Passu Loan is a Nonrecoverable Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance with respect to such
P&I Pari Passu Loan in accordance with Section 4.1 independently of any
determination made by any Other Master Servicer under the related Other
Companion Loan Pooling and Servicing Agreement in respect of any P&I Pari Passu
Loan following deposit of the Non-Serviced Companion Mortgage Loans or Serviced
Companion Mortgage Loans into a commercial mortgage securitization trust, and
the Other Master Servicer shall make its own determination that it has made a
P&I Advance that is a Nonrecoverable Advance (both as defined in the related
Other Companion Loan Pooling and Servicing Agreement) or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance (both as defined in
the related Other Companion Loan Pooling and Servicing Agreement) with respect
to the Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage
Loans, as applicable, in accordance with the related Other Companion Loan
Pooling and Servicing Agreement. The determination by either the applicable
Master Servicer or the Other Master Servicer made on the earlier of (i) the
Advance Report Date and (ii) the Other Advance Report Date that any such P&I
Advance is nonrecoverable shall be binding on the Other Master Servicer and the
applicable Master Servicer, as applicable, the Certificateholders and the
holders of any securities relating to the Non-Serviced Companion Mortgage Loans
or Serviced Companion Mortgage Loans, as applicable. The applicable Master
Servicer shall not make a P&I Advance with respect to any P&I Pari Passu Loan
after its receipt of notice from the related Other Master Servicer that it has
determined that it has made a P&I Advance that is a Nonrecoverable Advance on
the Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage Loans,
as applicable, or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable Advance pursuant to the relevant Other Companion Loan Pooling and
Servicing Agreement.
If the applicable Master Servicer determines that a P&I Advance would
be (if made), or any outstanding P&I Advance previously made is, a
Nonrecoverable Advance, the applicable Master Servicer shall provide the Other
Master Servicer written notice of such determination. If the applicable Master
Servicer receives written notice by the Other Master Servicer that it has
determined, with respect to any Mortgage Loan, that any proposed future P&I
Advance would be, or any outstanding P&I Advance is, a Nonrecoverable Advance,
the applicable Master Servicer shall not make any additional P&I Advances with
respect to such Mortgage Loan. Notwithstanding the foregoing, the applicable
Master Servicer shall continue to have the discretion provided in this Agreement
to determine that any future P&I Advance or outstanding P&I Advance would be, or
is, as applicable, a Nonrecoverable Advance. Once such a determination is made
by the applicable Master Servicer or such Master Servicer receives written
notice of such determination by the Other Master Servicer, the applicable Master
Servicer shall follow the process set forth in this paragraph before making any
additional P&I Advances with respect to such Mortgage Loan.
Following a securitization of a Serviced Companion Mortgage Loan, the
applicable Master Servicer shall be required to deliver to the related Other
Master Servicer the following information: (i) the CMSA Reports and any other
loan related information (in the form received) that is reasonably requested by
the Other Master Servicer relating to the related
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Serviced Pari Passu Mortgage Loan, and applicable to a determination that an
Advance is or would be a Nonrecoverable Advance, within one Business Day of the
applicable Master Servicer's receipt thereof, (ii) notice of any Servicing
Advance it, the Trustee or the Fiscal Agent makes with respect to the related
Serviced Pari Passu Mortgage Loan within one Business Day of the making of such
Advance and (iii) notice of any determination that any Servicing Advance is a
Nonrecoverable Advance within one Business Day thereof.
SECTION 4.2 SERVICING ADVANCES. The applicable Master Servicer and, if
the applicable Master Servicer does not, the Trustee to the extent the Trustee
receives written notice from the Paying Agent that such Advance has not been
made by the applicable Master Servicer, and if the Trustee does not, the Fiscal
Agent (to the extent the Fiscal Agent receives written notice that such Advance
has not been made by the Trustee), shall make Servicing Advances to the extent
provided in this Agreement, except to the extent that the applicable Master
Servicer, the Trustee or the Fiscal Agent, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance and, subject to the last sentence of this Section 4.2,
except to the extent the Special Servicer determines in accordance with the
Servicing Standard and Section 4.4 that such Advance, if made, would be a
Nonrecoverable Advance, in which event the Special Servicer shall promptly
direct the applicable Master Servicer not to make such Advance; provided that
the Special Servicer shall be under no obligation to make such determination.
Such determination by the applicable Master Servicer or the Special Servicer
shall be conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders and, in the case of any B Note, the holder of the related B
Note and, in the case of any Serviced Pari Passu Mortgage Loan, the holder of
the related Serviced Companion Mortgage Loan. Notwithstanding any other
provision of this Agreement, the Special Servicer shall not be required to make
Servicing Advances under this Agreement but may make such Servicing Advances at
its option in which event the applicable Master Servicer shall reimburse the
Special Servicer for such Servicing Advance with interest thereon at the Advance
Rate within 20 days of receipt of a statement therefor and, upon such
reimbursement, the applicable Master Servicer shall be deemed to have made such
Servicing Advance at the same time the Special Servicer made such Servicing
Advance and shall be entitled to reimbursement therefor pursuant to Section 5.2.
The applicable Master Servicer shall promptly notify the Paying Agent in writing
if it has failed to make a Servicing Advance that it is required to make
hereunder. Promptly after discovering or receiving notice that the applicable
Master Servicer has failed to make a Servicing Advance that such Master Servicer
is required to make hereunder, the Paying Agent shall promptly notify the
Trustee in writing of the failure by such Master Servicer to make such Servicing
Advance. The Trustee shall promptly notify the Paying Agent in writing if it has
failed to make a Servicing Advance that it is required to make hereunder.
Promptly after discovering or receiving notice that the Trustee has failed to
make a Servicing Advance that the Trustee is required to make hereunder, the
Paying Agent shall promptly notify the Fiscal Agent in writing of the failure by
the Trustee to make such Servicing Advance. The applicable Master Servicer may
make Servicing Advances in its own discretion if it determines that making such
Servicing Advance is in the best interest of the Certificateholders, even if
such Master Servicer or the Special Servicer has determined, in accordance with
Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
The applicable Non-Serviced Mortgage Loan Master Servicer is obligated
to make Servicing Advances pursuant to the related Non-Serviced Mortgage Loan
Pooling and
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Servicing Agreement with respect to any Non-Serviced Mortgage Loan, and the
applicable Master Servicer shall not have any obligation to make Servicing
Advances with respect to such Mortgage Loan.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the applicable Master Servicer fails to make a
P&I Advance with respect to a Mortgage Loan by the Master Servicer Remittance
Date (other than a P&I Advance that such Master Servicer or the Special Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
with respect to such Mortgage Loan to the extent the Trustee receives written
notice from the Paying Agent not later than 10:00 a.m. (New York City time) on
the Distribution Date that such Advance has not been made by the applicable
Master Servicer on the Master Servicer Remittance Date unless the Trustee
determines that such P&I Advance, if made, would be a Nonrecoverable Advance. To
the extent that the Trustee fails to make a P&I Advance required to be made by
the Trustee hereunder on the Distribution Date (other than a P&I Advance that
the applicable Master Servicer, the Special Servicer or the Trustee determines
is a Nonrecoverable Advance), it shall notify the Fiscal Agent and the Fiscal
Agent will advance such P&I Advance unless the Fiscal Agent determines that any
such P&I Advance, if made, would be a Nonrecoverable Advance. To the extent that
the Fiscal Agent is required hereunder to make P&I Advances on the Mortgage
Loans, it shall deposit the amount thereof in the Distribution Account by 1:00
p.m. (New York City time) on each such Distribution Date. The Paying Agent shall
notify the Trustee in writing as soon as practicable, but not later than 10:00
a.m. (New York City time) on the Distribution Date if the applicable Master
Servicer has failed to make a P&I Advance. The Paying Agent shall notify the
Fiscal Agent in writing as soon as practicable, but not later than 12:00 noon
(New York City time) on the Distribution Date if the Trustee has failed to make
a P&I Advance.
(b) To the extent that the applicable Master Servicer fails to make a
Servicing Advance by the date such Servicing Advance is required to be made
(other than a Servicing Advance that such Master Servicer determines is a
Nonrecoverable Advance), and a Responsible Officer of the Trustee receives
notice thereof, the Trustee shall make such Servicing Advance promptly, but in
any event, not later than five Business Days after notice thereof in accordance
with Section 4.2, unless the Trustee determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice pursuant to subsection (b) above, that such
Servicing Advance has not been made by the applicable Master Servicer (other
than a Servicing Advance that such Master Servicer or the Trustee has determined
to be a Nonrecoverable Advance), and the Fiscal Agent shall have received
written notice thereof, the Fiscal Agent will promptly advance such Servicing
Advance, unless the Fiscal Agent determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be made
by it hereunder shall not constitute a default by the initial Trustee hereunder
if the initial Fiscal Agent makes such Advance at or before the time when the
Trustee was required to make such Advance.
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SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the applicable Master Servicer or the Special Servicer
determines at any time, in its sole discretion, exercised in good faith, that
any Advance previously made (or Unliquidated Advance in respect thereof) or any
proposed Advance, if made, would constitute a Nonrecoverable Advance, such
determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the applicable Master Servicer (in the case of any such determination
by the Special Servicer), the Paying Agent, the Special Servicer (in the case of
any such determination by the applicable Master Servicer), the Operating Adviser
and the Rating Agencies (and the holder of the Serviced Companion Mortgage Loan
if the Advance relates to a Loan Pair, and the holder of the B Note if the
Advance relates to an A/B Mortgage Loan) by the Business Day prior to the
Distribution Date. Such Officer's Certificate shall set forth the reasons for
such determination of nonrecoverability, together with, to the extent such
information, report or document is in the applicable Master Servicer's or
Special Servicer's possession, any related financial information such as related
income and expense statements, rent rolls, occupancy status, property
inspections and any Appraisals performed within the last 12 months on the
Mortgaged Property, and, if such reports are used by the applicable Master
Servicer or the Special Servicer, as applicable, to determine that any P&I
Advance or Servicing Advance, as applicable, would be a Nonrecoverable Advance,
any engineers' reports, environmental surveys, internal final valuations or
other information relevant thereto which support such determination. If the
Trustee or the Fiscal Agent, as applicable, determines at any time that any
portion of an Advance previously made or a portion of a proposed Advance that
the Trustee or the Fiscal Agent, as applicable, is required to make pursuant to
this Agreement, if made, would constitute a Nonrecoverable Advance, such
determination shall be evidenced by an Officer's Certificate of a Responsible
Officer of the Trustee or the Fiscal Agent, as applicable, delivered to the
Depositor, the applicable Master Servicer, the Special Servicer, the Paying
Agent and the Operating Adviser similar to the Officer's Certificate of the
applicable Master Servicer or the Special Servicer described in the prior
sentence. If the Special Servicer determines at any time that any portion of an
Advance previously made would constitute a Nonrecoverable Advance (provided,
that the Special Servicer shall have no obligation to make such determination),
such determination shall be evidenced by an Officer's Certificate of a
Responsible Officer of the Special Servicer, delivered to the Depositor, the
applicable Master Servicer, the Trustee, the Fiscal Agent, the Paying Agent and
the Operating Adviser similar to the Officer's Certificate of the applicable
Master Servicer described above. For the avoidance of doubt, the Special
Servicer shall not have any right to revise any nonrecoverability determination
that may have been made by the applicable Master Servicer, the Trustee or the
Fiscal Agent. Each of the applicable Master Servicer, the Trustee and the Fiscal
Agent shall be entitled to rely on any nonrecoverability determination that is
made by the Special Servicer as aforesaid. The Trustee and the Fiscal Agent
shall not be required to make an Advance that the applicable Master Servicer or
the Special Servicer (or with respect to a Mortgage Loan included in a Loan Pair
or any Non-Serviced Mortgage Loan, the related Other Master Servicer) has
previously determined to be a Nonrecoverable Advance. Notwithstanding any other
provision of this Agreement, none of the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor shall it,
make any Advance or make any payment that is designated in this Agreement to be
an Advance, if it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance. A Master Servicer's or the Special Servicer's
determination in accordance with the above provisions
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shall be conclusive and binding on the Trustee, the Fiscal Agent, the Paying
Agent and the Certificateholders. The applicable Master Servicer shall consider
Unliquidated Advances in respect of prior P&I Advances and Servicing Advances as
outstanding Advances for purposes of nonrecoverablility determinations as if
such Unliquidated Advance were a P&I Advance or Servicing Advance, as
applicable.
(b) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Trustee, as applicable, shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable Advances pursuant to and to the extent set forth
in the related Non-Serviced Mortgage Loan Intercreditor Agreement (with, in each
case, any accrued and unpaid interest thereon provided for under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the manner set
forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from a Master
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's own
funds shall accrue interest on a daily basis, at a per annum rate equal to the
Advance Rate, from and including the date such Advance was made to but not
including the date on which such Advance has been reimbursed; provided, however,
that neither the applicable Master Servicer nor any other party shall be
entitled to interest accrued on the amount of any P&I Advance with respect to
any Mortgage Loan for the period commencing on the date of such P&I Advance and
ending on the day on which the grace period applicable to the related
Mortgagor's obligation to make the related Scheduled Payment expires pursuant to
the related Mortgage Loan or B Note documents. All Late Collections on any
Non-Serviced Mortgage Loan in respect of interest shall, promptly following
receipt thereof, be applied by the applicable Master Servicer to reimburse the
interest component of any P&I Advance outstanding with respect to such
Non-Serviced Mortgage Loan. Any party that makes a P&I Advance with respect to
any Non-Serviced Mortgage Loan shall provide to the applicable Non-Serviced
Mortgage Loan Master Servicer monthly, at least two Business Days prior to the
next succeeding Due Date for such Non-Serviced Mortgage Loan, written notice of
whether (and, if any, how much) Advance Interest will be payable on the interest
component of that P&I Advance through the next succeeding related Master
Servicer Remittance Date. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan, B
Note or REO Property and treated as collections of principal or interest shall
be applied first to reimburse the earliest P&I Advance, and then each succeeding
P&I Advance to the extent not inconsistent with Section 4.6. The applicable
Master Servicer shall use efforts consistent with the Servicing Standard to
collect (but shall have no further obligation to collect), with respect to the
Mortgage Loans (and the Serviced Companion Mortgage Loans) that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest. The applicable Master
Servicer shall be entitled to retain Late Fees and default interest paid by any
Mortgagor during a Collection Period with respect to any Mortgage Loan (other
than the portion of such Late Fee and default interest that relates to the
period commencing on the date of a Servicing Transfer Event in respect of a
Specially Serviced Mortgage Loan, as to which the Special Servicer shall retain
Late Fees and default interest with respect to such Specially Serviced Mortgage
Loan, subject to the offsets set forth below) as additional servicing
compensation only to the extent such Late Fees and default interest exceeds
Advance Interest accrued or previously paid with respect to the related Mortgage
Loan. The Special Servicer,
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with respect to any Specially Serviced Mortgage Loan, shall (i) pay from any
Late Fees and default interest collected from such Specially Serviced Mortgage
Loan (a) any outstanding and unpaid Advance Interest in respect of such
Specially Serviced Mortgage Loan to the applicable Master Servicer, the Trustee
or the Fiscal Agent, as applicable and (b) to the Trust, any losses previously
incurred by the Trust with respect to such Specially Serviced Mortgage Loan and
(ii) retain any remaining portion of such Late Fees and default interest as
additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, Serviced
Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loan or REO
Property (including Advances later determined to be Nonrecoverable Advances) and
Advance Interest thereon shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances and Advance Interest thereon pursuant to Section 5.2
collected in any Collection Period with respect to Mortgage Loans, any Serviced
Companion Mortgage Loan or any B Note or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage Loans,
any Serviced Companion Mortgage Loan, any B Note, any Specially Serviced
Mortgage Loans or any REO Mortgage Loans, the Available Advance Reimbursement
Amount with respect to any Determination Date shall be applied to reimburse (i)
the Fiscal Agent for any Advances outstanding to the Fiscal Agent with respect
to any of such Mortgage Loans, Serviced Companion Mortgage Loan, B Note,
Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance
Interest owed to the Fiscal Agent with respect to such Advances and then (ii)
the Trustee for any Advances outstanding to the Trustee with respect to any of
such Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Trustee with respect to such Advances and then (iii) the Master Servicers
for any Advances outstanding to the Master Servicers with respect to any of such
Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially Serviced
Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the
Master Servicers with respect to such Advances and then (iv) the Special
Servicer for any Advances outstanding to the Special Servicer with respect to
any of such Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Special Servicer with respect to such Advances. To the extent that any
Advance Interest payable to the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent with respect to a Specially Serviced
Mortgage Loan or REO Mortgage Loan cannot be recovered from the related
Mortgagor, the amount of such Advance Interest shall be payable to the Fiscal
Agent, the Trustee, the Special Servicer or the applicable Master Servicer, as
the case may be, from amounts on deposit in such Master Servicer's Certificate
Account (or sub-account thereof) or the Distribution Account, to the extent of
amounts identified to be applied therefor, pursuant to Section 5.2(a) or Section
5.3(b)(ii). Each Master Servicer's, the Special Servicer's, the Fiscal Agent's
and the Trustee's right of reimbursement under this Agreement for Advances shall
be prior to the rights of the Certificateholders (and, in the case of a Serviced
Companion Mortgage Loan, the holder thereof
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and, in the case of a B Note, the holder thereof) to receive any amounts
recovered with respect to such Mortgage Loans, Serviced Companion Mortgage
Loans, B Notes or REO Mortgage Loans.
(c) Advance Interest will be paid to the Fiscal Agent, the Trustee,
the applicable Master Servicer and/or the Special Servicer (in accordance with
the priorities specified in the preceding paragraph) first, from Late Fees and
default interest collected with respect to the related Mortgage Loan during the
Collection Period during which the related Advance is reimbursed, and then from
Excess Liquidation Proceeds then available prior to payment from any other
amounts. Late Fees and default interest will be applied on a "loan-by-loan
basis" (under which Late Fees and default interest will be offset against the
Advance Interest arising only from that particular Mortgage Loan) to the payment
of Advance Interest on all Advances then being reimbursed or previously paid.
Advance Interest payable to the applicable Master Servicer, the Special
Servicer, the Fiscal Agent or the Trustee in respect of Servicing Advances on
any Loan Pair shall be allocated to the Serviced Pari Passu Mortgage Loan and
the Serviced Companion Mortgage Loan on a pro rata basis based upon the
Principal Balance thereof.
(d) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the applicable Master Servicer
shall reimburse the Special Servicer for such expenditures within 30 days after
receiving an invoice and a report from the Special Servicer, subject to Section
4.4. With respect to each Collection Period, the Special Servicer shall deliver
such invoice and report to the applicable Master Servicer by the following
Determination Date. All such amounts reimbursed by the applicable Master
Servicer shall be a Servicing Advance. In the event that the applicable Master
Servicer fails to reimburse the Special Servicer hereunder or such Master
Servicer determines that such Servicing Advance was or, if made, would be a
Nonrecoverable Advance and such Master Servicer does not make such payment, the
Special Servicer shall notify such Master Servicer and the Paying Agent in
writing of such nonpayment and the amount payable to the Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The Master Servicers, the Paying Agent and the Trustee shall have no
obligation to verify the amount payable to the Special Servicer pursuant to this
Section 4.6(e) and circumstances surrounding the notice delivered by the Special
Servicer pursuant to this Section 4.6(e).
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, each Master Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be maintained,
a separate account or accounts, which accounts must be Eligible Accounts, in the
name of (i) in the case of the Xxxxx Fargo Master Servicer, "Xxxxx Fargo Bank,
National Association, as Master Servicer for LaSalle
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Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6" (the
"Xxxxx Fargo Certificate Account") and (ii) in the case of the PAR Master
Servicer, "Prudential Asset Resources, Inc., as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6" (the "PAR
Certificate Account"). Each of the Xxxxx Fargo Certificate Account and the PAR
Certificate Account is a "Certificate Account" under this Agreement.
(b) On or prior to the date a Master Servicer shall first deposit
funds in the applicable Certificate Account, such Master Servicer shall give to
the Paying Agent and the Trustee prior written notice of the name and address of
the depository institution(s) at which such accounts are maintained and the
account number of such accounts. A Master Servicer shall take such actions as
are necessary to cause the depository institution holding the applicable
Certificate Account to hold such account in the name of such Master Servicer as
provided in Section 5.1(a), subject to such Master Servicer's (or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) Each Master Servicer shall deposit, or cause to be deposited, into
the applicable Certificate Account on the Business Day following receipt (or, in
the case of an inadvertent failure to make such deposit on the Business Day
following receipt, within 3 Business Days of discovery of such failure and in
the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the applicable
Master Servicer by the Special Servicer from an REO Account pursuant to Section
9.14), other than in respect of interest and principal on the Mortgage Loans,
any Serviced Companion Mortgage Loan or any B Note due on or before the Cut-Off
Date which shall be remitted to the Depositor (provided that the applicable
Master Servicer (I) may retain amounts otherwise payable to the applicable
Master Servicer as provided in Section 5.2(a) rather than deposit them into the
applicable Certificate Account and (II) shall, rather than deposit them in the
applicable Certificate Account, directly remit the Excess Servicing Fees to the
holders thereof as provided in Section 5.2(a)(iv))(unless already retained by
the applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments,
and any Late Collections in respect thereof, on the Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note;
(B) Interest: all payments on account of interest on the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note;
(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note;
(D) Insurance Proceeds: all Insurance Proceeds (and other
insurance proceeds payable to a B Note holder) other than proceeds to
be applied to the restoration or repair of the property subject to the
related Mortgage or released to the related Mortgagor in accordance
with the Servicing Standard, which proceeds
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shall be deposited by the applicable Master Servicer into an Escrow
Account and not deposited in the applicable Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds (and other
condemnation proceeds payable to a B Note holder) other than proceeds
to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the related Mortgagor in
accordance with the Servicing Standard, which proceeds shall be
deposited by the applicable Master Servicer into an Escrow Account and
not deposited in the applicable Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the applicable Master Servicer pursuant to Section 5.1(e) in
connection with losses realized on Eligible Investments with respect
to funds held in the applicable Certificate Account and amounts
required to be deposited by the Special Servicer pursuant to Section
9.14(b) in connection with losses realized on Eligible Investments
with respect to funds held in the REO Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the applicable Certificate Account
pursuant to this Agreement, including Purchase Proceeds of any
Mortgage Loans repurchased by a Seller or substitution shortfall
amounts (as described in the fifth paragraph of Section 2.3(a)) paid
by a Seller in connection with the substitution of any Qualifying
Substitute Mortgage Loans, payments or recoveries in respect of
Unliquidated Advances or in respect of Nonrecoverable Advances paid
from principal collections on the Mortgage Loan pursuant Section
5.2(a)(II), any other amounts received with respect to any Serviced
Companion Mortgage Loan and with respect to any B Note, all other
amounts received pursuant to the cure and purchase rights set forth in
the applicable Intercreditor Agreement; and
(J) to the extent not otherwise set forth above, all amounts
received from each Non-Serviced Mortgage Loan Master Servicer,
Non-Serviced Mortgage Loan Special Servicer or Non-Serviced Mortgage
Loan Trustee pursuant to the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the applicable Master Servicer
shall establish and maintain one or more sub-accounts of a Certificate Account
(each an "A/B Loan Custodial Account") into which such Master Servicer shall
deposit any amounts described above that are required to be paid to the holder
of the related B Note pursuant to the terms of the related Intercreditor
Agreement, in each case on the same day as the deposit thereof into a
Certificate Account. Any A/B Loan Custodial Account shall be held in trust for
the benefit of the holder of the related B Note and shall not be part of any
REMIC Pool.
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With respect to any Loan Pair, the applicable Master Servicer shall
establish and maintain one or more sub-accounts of the applicable Certificate
Account (each, a Serviced Companion Mortgage Loan Custodial Account) into which
such Master Servicer shall deposit any amounts described above that are required
to be paid to the holder of the related Serviced Companion Mortgage Loan
pursuant to the terms of the related Loan Pair Intercreditor Agreement, in each
case on the same day as the deposit thereof into a Certificate Account. Each
Serviced Companion Mortgage Loan Custodial Account shall be held in trust for
the benefit of the holder of the related Serviced Companion Mortgage Loan and
shall not be part of any REMIC Pool.
Remittances from any REO Account to the applicable Master Servicer for
deposit in the applicable Certificate Account shall be made by the Special
Servicer no later than the Special Servicer Remittance Date.
(d) Each Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall on the Master Servicer Remittance Date, remit to the Paying Agent for
deposit in the Interest Reserve Account in respect of each Interest Reserve
Loan, an amount equal to one day's interest at the related REMIC I Net Mortgage
Rate (without any conversion to a 30/360 basis as provided in the definition
thereof) on the Scheduled Principal Balance of such Mortgage Loan as of the Due
Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount"). For
purposes of determining amounts to be so remitted to the Paying Agent, the REMIC
I Net Mortgage Rate used in this calculation for those months will be calculated
without regard to any adjustment for Interest Reserve Amounts or the interest
accrual basis as described in the proviso to the definition of "REMIC I Net
Mortgage Rate."
(e) Funds in a Certificate Account (including any A/B Loan Custodial
Accounts and Serviced Companion Mortgage Loan Custodial Accounts) may be
invested and, if invested, shall be invested by, and at the risk of, the
applicable Master Servicer in Eligible Investments selected by the applicable
Master Servicer which shall mature, unless payable on demand, not later than the
Business Day immediately preceding the next Master Servicer Remittance Date, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Eligible Investments shall be made
in the name of "LaSalle Bank National Association, as Trustee for the Holders of
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 and the holder of any related Serviced Companion
Mortgage Loan or B Note as their interests may appear." None of the Depositor,
the Special Servicer, the Mortgagors, the Paying Agent or the Trustee shall be
liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the applicable Master Servicer as additional
servicing compensation, and shall be subject to its withdrawal at any time from
time to time. The amount of any losses incurred in respect of any such
investments shall be for the account of the applicable Master Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the applicable Certificate Account (and, solely to the
extent that the loss is of an amount
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credited to an A/B Loan Custodial Account or Serviced Companion Mortgage Loan
Custodial Account, deposit to the related A/B Loan Custodial Account or Serviced
Companion Mortgage Loan Custodial Account, as the case may be), out of its own
funds immediately as realized, provided that, such investment losses shall not
include any loss with respect to such investment which is incurred solely as a
result of the insolvency of the federal or state chartered depositary
institution or trust company at which such Certificate Account is maintained, so
long as such depositary institution or trust company (a) satisfied the
qualifications set forth in the definition of "Eligible Account" both at the
time such investment was made and as of a date not more than 30 days prior to
the date of such loss and (b) is not the same Person as the Person that made the
relevant investment. If the applicable Master Servicer deposits in or transfers
to the applicable Certificate Account, any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from such Certificate
Account, such A/B Loan Custodial Account or such Serviced Companion Mortgage
Loan Custodial Account, as the case may be, any provision herein to the contrary
notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the applicable Master Servicer shall
have deposited in the applicable Certificate Account, the related Serviced
Companion Mortgage Loan Custodial Account or the related A/B Loan Custodial
Account, as applicable, an amount equal to all amounts due under any such
Eligible Investment (net of anticipated income or earnings thereon that would
have been payable to the applicable Master Servicer as additional servicing
compensation) such Master Servicer shall have the sole right to enforce such
payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the applicable Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. Such Master Servicer shall deal
with these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof. Within 20 days following the
first anniversary of the Closing Date, the applicable Master Servicer shall
deliver to the Trustee, the Paying Agent and the Operating Adviser, for each
Mortgage Loan set forth on Schedule VII hereto, a brief statement as to the
status of the work or project based on the most recent information provided by
the Mortgagor. Schedule VII sets forth those Mortgage Loans as to which an
upfront reserve was collected at closing in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the applicable Master
Servicer and the Special Servicer (which shall itself consult with the Operating
Adviser) will consult with each other as to whether there exists a material
default under the underlying Mortgage Loan documents.
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(h) In the case of the Mortgage Loans set forth on Schedule XI, as to
which the Scheduled Payment is due in a calendar month on a Due Date (including
any grace period) that may occur after the end of the Collection Period ending
in such calendar month, the applicable Master Servicer shall, unless the
Scheduled Payment is received before the end of such Collection Period, make a
P&I Advance by deposit to a Certificate Account on the Master Servicer
Remittance Date in an amount equal to the Scheduled Payment or the Assumed
Scheduled Payment, as applicable, and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment or Assumed Scheduled Payment, as applicable, shall be deemed
to have been received in such Collection Period.
SECTION 5.2 APPLICATION OF FUNDS IN A CERTIFICATE ACCOUNT AND INTEREST
RESERVE ACCOUNT.
(a) Subsection (I). Each Master Servicer shall, from time to time,
make withdrawals from its Certificate Account and remit them by wire transfer
prior to 12:00 p.m., New York City time, on the related Master Servicer
Remittance Date in immediately available funds to the account specified in this
Section or otherwise (w) to such account as such Master Servicer shall determine
from time to time of amounts payable to such Master Servicer from the applicable
Certificate Account (or, insofar as they relate to a B Note, from the related
A/B Loan Custodial Account or, insofar as they relate to a Serviced Companion
Mortgage Loan, from the related Serviced Companion Mortgage Loan Custodial
Account) pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix)
below; (x) to the account specified in writing by the Paying Agent from time to
time of amounts payable to the Paying Agent and the Trustee from such
Certificate Account (and, insofar as they relate to a B Note, from the related
A/B Loan Custodial Account and, insofar as they relate to a Serviced Companion
Mortgage Loan, from the Serviced Companion Mortgage Loan Custodial Account)
pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and
(y) to the Special Servicer from time to time of amounts payable to the Special
Servicer from such Certificate Account (or, insofar as they relate to a B Note,
from the related A/B Loan Custodial Account or, insofar as they relate to a
Serviced Companion Mortgage Loan, from the related Serviced Companion Mortgage
Loan Custodial Account) pursuant to clauses (i), (ii), (iv), (vi), (vii) and
(ix) below of the following amounts, from the amounts specified for the
following purposes:
(i) Fees: the applicable Master Servicer shall pay (A) to itself
Late Fees (in excess of amounts used to pay Advance Interest) relating to
Mortgage Loans, Serviced Companion Mortgage Loans or B Notes which are not
Specially Serviced Mortgage Loans, Modification Fees relating to Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes which are not Specially Serviced
Mortgage Loans as provided in Section 8.18, 50% of any assumption fees payable
under Section 8.7(a) or 8.7(b), 100% of any extension fees payable under Section
8.10 or other fees payable to such Master Servicer hereunder and (B) directly to
the Special Servicer, 50% of any assumption fees as provided in Section 8.7(a),
50% of any assumption fees as provided in Section 8.7(b), all assumption fees
relating to Specially Serviced Mortgage Loans, Modification Fees and other fees
collected on Specially Serviced Mortgage Loans, in each case to the extent
provided for herein from funds paid by the applicable Mortgagor, and Late Fees
and default interest collected on any Specially Serviced Mortgage Loan in excess
of Advance Interest payable to such Master Servicer, the Trustee or the Fiscal
Agent in respect of such Specially Serviced Mortgage Loan (which Advance
Interest such
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Master Servicer shall retain or pay to the Trustee or the Fiscal Agent, as the
case may be, to the extent provided for in this Agreement) to the extent the
Special Servicer is entitled to such Late Fees and default interest under
Section 4.5;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans as to which the
applicable Master Servicer is the Master Servicer, Serviced Companion Mortgage
Loans and B Notes, subject to clause (B) below and subsection (iv) of Section
5.2(a)(II), to reimburse or pay to the applicable Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) prior
to a Final Recovery Determination or determination in accordance with Section
4.4 that any Advance is a Nonrecoverable Advance, Servicing Advances on the
related Mortgage Loan, Serviced Companion Mortgage Loan or B Note, as
applicable, from payments made by the related Mortgagor of the amounts to which
a Servicing Advance relates or from REO Income from the related REO Property or
from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase
Proceeds and, to the extent that a Servicing Advance has been or is being
reimbursed, any related Advance Interest thereon first, from Late Fees and
default interest collected with respect to the related Mortgage Loan during the
Collection Period during which such Advance is reimbursed, and then from Excess
Liquidation Proceeds then available and then from any other amounts on deposit
in the applicable Certificate Account; provided that, Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest will be offset against the Advance Interest arising only from
the particular Mortgage Loan) to the payment of Advance Interest on all Advances
on such Mortgage Loan (and any Serviced Companion Mortgage Loan and B Notes)
then being reimbursed or (y) after a Final Recovery Determination or
determination that any Servicing Advance on the related Mortgage Loan, Serviced
Companion Mortgage Loan or B Note is a Nonrecoverable Advance, any Servicing
Advances made on the related Mortgage Loan, related Serviced Companion Mortgage
Loan, related B Note or REO Property from any funds on deposit in the applicable
Certificate Account (regardless of whether such amount was recovered from the
applicable Mortgage Loan, Serviced Companion Mortgage Loan, B Note or REO
Property) and pay Advance Interest thereon first, from Late Fees and default
interest collected during the Collection Period during which such Advance is
reimbursed (applying such Late Fees and default interest on a "loan-by-loan
basis", as described above, for all Mortgage Loans to the payment of Advance
Interest on all Advances on such Mortgage Loan (and any Serviced Companion
Mortgage Loans and B Notes) then being reimbursed or previously paid), then from
Excess Liquidation Proceeds then available and then from any other amounts on
deposit in such Certificate Account and (B) in the case of any Non-Serviced
Mortgage Loan and from any funds on deposit in such Certificate Account, to
reimburse the applicable Non-Serviced Mortgage Loan Master Servicer, the
applicable Non-Serviced Mortgage Loan Special Servicer, the applicable
Non-Serviced Mortgage Loan Trustee for Pari Passu Loan Nonrecoverable Advances
and any accrued and unpaid interest thereon provided for under the related
Non-Serviced Mortgage Loan Intercreditor Agreement and Non-Serviced Mortgage
Loan Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined to
be Nonrecoverable Advances): in the case of all Mortgage Loans as to which the
applicable Master Servicer is the Master Servicer, subject to subsection (iv) of
Section 5.2(a)(II), to reimburse or pay to the applicable Master Servicer, the
Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) if prior to a Final
Recovery Determination or determination that any Advance is a
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Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a P&I Advance
has been or is being reimbursed, any related Advance Interest thereon, first,
from Late Fees and default interest collected with respect to the related
Mortgage Loan during the Collection Period during which such Advance is
reimbursed, and then from Excess Liquidation Proceeds then available and then
from any other amounts on deposit in the applicable Certificate Account;
provided that, Late Fees and default interest will be applied on a "loan-by-loan
basis" (under which Late Fees and default interest will be offset against the
Advance Interest arising only from the particular Mortgage Loan) to the payment
of Advance Interest on all Advances on such Mortgage Loan then being reimbursed
or previously paid or (y) if after a Final Recovery Determination or
determination in accordance with Section 4.4 that any P&I Advance on the related
Mortgage Loan is a Nonrecoverable Advance, any P&I Advances made on the related
Mortgage Loan or REO Property from funds on deposit in such Certificate Account
(regardless of whether such amount was recovered from the applicable Mortgage
Loan or REO Property) and any Advance Interest thereon, first, from Late Fees
and default interest collected with respect to the related Mortgage Loan during
the Collection Period during which such Advance is reimbursed (applying such
Late Fees and default interest on a "loan-by-loan basis", as described above,
for all Mortgage Loans to the payment of Advance Interest on all Advances on
such Mortgage Loans then being reimbursed or previously paid), then from Excess
Liquidation Proceeds then available and then from any other amounts on deposit
in such Certificate Account;
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee and to pay to the parties entitled thereto the Excess Servicing
Fees (to the extent not previously retained by any of such parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the Distribution
Account for withdrawal by the Paying Agent, the Paying Agent Fee and the Trustee
Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time set forth
herein or in the definition thereof), the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the applicable Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in the applicable Certificate
Account (including any A/B Loan Custodial Accounts and Serviced Companion
Mortgage Loan Custodial Accounts);
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(ix) Prepayment Interest Excesses: to pay to the applicable
Master Servicer the amount of the aggregate Prepayment Interest Excesses
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans (to
the extent not offset by Prepayment Interest Shortfalls relating to such
Mortgage Loans); and to pay to the Special Servicer the amount of the aggregate
Prepayment Interest Excesses relating to Specially Serviced Mortgage Loans which
have received voluntary Principal Prepayments (not from Liquidation Proceeds or
from modifications to Specially Serviced Mortgage Loans), to the extent not
offset by Prepayment Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in the
applicable Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the applicable Certificate
Account (excluding any Excess Interest) and of the amounts described in Section
5.1(d) in respect of Interest Reserve Amounts to the Distribution Account (or in
the case of any Excess Interest, deposit to the Excess Interest Sub-account
under Section 5.3(b)) other than amounts held for payment in future periods or
pursuant to clause (xii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the applicable
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note:
(A) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account to the
portion of the applicable Certificate Account that does not constitute
the A/B Loan Custodial Account, of amounts necessary for the payments
or reimbursement of amounts described in any one or more of clauses
(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (xii)
above, but only insofar as the payment or reimbursement described
therein arises from or is related solely to such A/B Mortgage Loan and
is allocable to the related Mortgage Loan pursuant to this Agreement
or the related Intercreditor Agreement, and such Master Servicer shall
also be entitled to make transfers from time to time, from the related
A/B Loan Custodial Account to the portion of such Certificate Account
that does not constitute the A/B Loan Custodial Account, of amounts
transferred to such related A/B Loan Custodial Account in error, and
amounts necessary for the clearing and termination of such Certificate
Account pursuant to Section 8.29;
(B) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account to the
portion of the applicable Certificate Account that does not constitute
the A/B Loan Custodial Account, of amounts not otherwise described in
clause (A) above to which the
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holder of an A Note is entitled under the A/B Mortgage Loan and the
related Intercreditor Agreement (including in respect of interest,
principal and Prepayment Premiums in respect of the A Note (whether or
not by operation of any provision of the related Intercreditor
Agreement that entitles the holder of such A Note to receive
remittances in amounts calculated without regard to any modification,
waiver or amendment of the economic terms of such A Note)); and
(C) the applicable Master Servicer shall on each Master Servicer
Remittance Date remit to the holder of the related B Note all amounts
on deposit in such A/B Loan Custodial Account (net of amounts
permitted or required to be transferred therefrom as described in
clauses (A) and/or (B) above), to the extent that the holder of such B
Note is entitled thereto under the related Intercreditor Agreement
(including by way of the operation of any provision of the related
Intercreditor Agreement that entitles the holder of such B Note to
reimbursement of cure payments made by it).
and provided further, however, that in the case of any Serviced Companion
Mortgage Loan:
(A) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the applicable Certificate Account
that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts necessary for the payments or
reimbursement of amounts described in any one or more of clauses (i),
(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (xii) above, but
only insofar as the payment or reimbursement described therein arises
from or is related solely to such Loan Pair and is allocable to the
Serviced Companion Mortgage Loan, and such Master Servicer shall also
be entitled to make transfers from time to time, from the related
Serviced Companion Mortgage Loan Custodial Account to the portion of a
Certificate Account that does not constitute any Serviced Companion
Mortgage Loan Custodial Account, of amounts transferred to such
related Serviced Companion Mortgage Loan Custodial Account in error,
and amounts necessary for the clearing and termination of such
Certificate Account pursuant to Section 8.29; provided, however that
such Master Servicer shall not be entitled to make transfers from the
portion of such Certificate Account that does not constitute any
Serviced Companion Mortgage Loan Custodial Account (other than amounts
previously transferred from the related Serviced Companion Mortgage
Loan Custodial Account in accordance with this clause (A)) of amounts
necessary for the payment or reimbursement of amounts described in any
one or more of the foregoing clauses;
(B) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the applicable Certificate Account
that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts not otherwise described in clause (A)
above to which the holder of a Serviced Pari Passu Mortgage Loan is
entitled under the related Loan Pair
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Intercreditor Agreement (including in respect of interest, principal
and Prepayment Premiums); and
(C) the applicable Master Servicer shall, one (1) Business Day after
the related Determination Date, remit to the holder of the related
Serviced Companion Mortgage Loan all amounts on deposit in such
related Serviced Companion Mortgage Loan Custodial Account (net of
amounts permitted or required to be transferred therefrom as described
in clauses (A) and/or (B) above), to the extent that the holder of
such Serviced Companion Mortgage Loan is entitled thereto under the
related Loan Pair Intercreditor Agreement.
No decision by the applicable Master Servicer, the Trustee or the
Fiscal Agent under either this Section 5.2(a) or subsection (iv) of Section
5.2(a)(II), to defer the reimbursement of Advances and/or Advance Interest shall
be construed as an agreement by such Master Servicer, the Trustee or the Fiscal
Agent to subordinate (in respect of realizing losses), to any Class of
Certificates, such party's right to such reimbursement during such period of
deferral.
In addition, if at any time a Master Servicer is entitled to make a
payment, reimbursement or remittance from its Certificate Account, the payment,
reimbursement or remittance can be made from any funds on deposit in such
Certificate Account and the amounts on deposit in such Certificate Account
(after withdrawing any portion of such amounts deposited in such Certificate
Account in error) are insufficient to satisfy such payment, reimbursement or
remittance and the amount on deposit in the Other Master Servicer's Certificate
Account (after withdrawing any portion of such amounts deposited in such
Certificate Account in error) is sufficient to make such payment, reimbursement
or remittance, then such Other Master Servicer shall withdraw funds from its
Certificate Account and make such payment, reimbursement or remittance within
three (3) Business Days following a written request therefor from the first
Master Servicer, which request is accompanied by an Officer's Certificate (1)
either (x) setting forth that the requesting Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Paying Agent or another particular
Person, as applicable, is entitled to such payment, reimbursement or remittance
(and setting forth the nature and amount of such payment, reimbursement or
remittance and the party entitled thereto) or (y) forwarding a copy of any
Officer's Certificate or other information provided by the Special Servicer, the
Trustee, the Fiscal Agent, the Paying Agent or another particular Person, as the
case may be, that sets forth that such Person is entitled to such payment,
reimbursement or remittance (and the nature and amount of such payment,
reimbursement or remittance and the party entitled thereto) and (2) setting
forth that the requesting Master Servicer does not then have on deposit in its
Certificate Account funds sufficient for such reimbursement.
Expenses incurred with respect to any Loan Pair shall be allocated in
accordance with the related Loan Pair Intercreditor Agreement. Expenses incurred
with respect to an A/B Mortgage Loan shall be allocated in accordance with the
related Intercreditor Agreement. The applicable Master Servicer shall keep and
maintain a separate accounting for each Mortgage Loan, Serviced Companion
Mortgage Loan and B Note for the purpose of justifying any withdrawal or
transfer from the applicable Certificate Account, any Serviced Companion
Mortgage Loan Custodial Account and any A/B Loan Custodial Account, as
applicable. If funds
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collected in respect of the A Notes are insufficient to pay the Master Servicing
Fee, then the applicable Master Servicer shall be entitled to withdraw the
amount of such shortfall from the collections on, and other proceeds of, the B
Note that are held in the related A/B Loan Custodial Account. The applicable
Master Servicer shall not be permitted to withdraw any funds from the portion of
the applicable Certificate Account that does not constitute the A/B Loan
Custodial Account to pay amounts related to the B Note unless there are no
remaining funds in the related A/B Loan Custodial Account available to make such
payments that are required to be paid in accordance with the related
Intercreditor Agreement.
Subsection (II). The provisions of this subsection II of this Section
5.2(a) shall apply notwithstanding any contrary provision of subsection (I) of
this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts. If
any Advance made with respect to any Mortgage Loan on or before the
date on which such Mortgage Loan becomes (or, but for the requirement
that the Mortgagor shall have made three consecutive scheduled
payments under its modified terms, would then constitute) a
Rehabilitated Mortgage Loan, together with Advance Interest accrued
thereon, is not, pursuant to the operation of the provisions of
Section 5.2(a)(I), reimbursed to the Person who made such Advance on
or before the date, if any, on which such Mortgage Loan becomes a
Rehabilitated Mortgage Loan, such Advance, together with such Advance
Interest, shall constitute a "Workout-Delayed Reimbursement Amount" to
the extent that such amount has not been determined to constitute a
Nonrecoverable Advance. All references herein to "Workout-Delayed
Reimbursement Amount" shall be construed always to mean the related
Advance and any Advance Interest thereon, together with any further
Advance Interest that accrues on the unreimbursed portion of such
Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of
and conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is
not otherwise entitled to reimbursement and payment of such
Workout-Delayed Reimbursement Amount pursuant to the operation of
Section 5.2(a)(I) above. Subsection (iv) below (subject to the terms
and conditions thereof) authorizes the applicable Master Servicer to
abstain from reimbursing itself (or, if applicable, the Trustee or the
Fiscal Agent to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances at its sole
option. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable
Advance, then the reimbursement or payment of such amount (and any
further Advance Interest that may accrue thereon) shall cease to be
subject to the operation of subsection (iii) below, such amount (and
further Advance Interest) shall be as fully payable and reimbursable
to the relevant
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Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of the applicable Master Servicer's (or, if applicable, the
Trustee's or the Fiscal Agent's) exercise of its sole option
authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts.
The applicable Master Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, as applicable, shall be entitled to reimbursement
and payment for all Workout-Delayed Reimbursement Amounts in each
Collection Period; provided, however, that the aggregate amount (for
all such Persons collectively) of such reimbursements and payments in
such Collection Period shall not exceed (and the reimbursement and
payment shall be made from) the aggregate amount in the applicable
Collection Account allocable to principal received with respect to the
Mortgage Loans for such Collection Period contemplated by clause
(I)(A) of the definition of Principal Distribution Amount (but not
including any such amounts that constitute Advances) and net of any
Nonrecoverable Advances then outstanding and reimbursable from such
principal in accordance with Section 5.2(a)(II)(iv) below. As and to
the extent provided in clause (II)(A) of the definition thereof, the
Principal Distribution Amount for the Distribution Date related to
such Collection Period shall be reduced to the extent that such
payment or reimbursement of a Workout-Delayed Reimbursement Amount is
made from the aggregate amount in the applicable Collection Account
allocable to principal pursuant to the preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Option to
Abstain from Reimbursements of Certain Nonrecoverable Advances. To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer to reimbursement for any Nonrecoverable Advance (or payment
of Advance Interest thereon from a source other than Late Fees and
default interest on the related Mortgage Loan) during any Collection
Period, then, notwithstanding any contrary provision of subsection (I)
above, (a) to the extent that one or more such reimbursements and
payments of Nonrecoverable Advances (and such Advance Interest
thereon) are made, such reimbursements and payments shall be made,
first, from the aggregate amount in the applicable Collection Account
allocable to principal received with respect to the Mortgage Loans for
such Collection Period contemplated by clause (I)(A) of the definition
of Principal Distribution Amount (but not including any such amounts
that constitute Advances, and prior to any deduction for
Workout-Delayed Reimbursement Amounts (and Advance Interest thereon)
that were reimbursed or paid during the related Collection Period from
amounts allocable to principal received with respect to the Mortgage
Loans, as described by clause (II)(A) of the definition of Principal
Distribution Amount and pursuant to subsection (iii) of Section
5.2(a)(II)), and then from other collections (including interest) on
the Mortgage Loans for such Collection Period, provided, that if
interest is used to reimburse such Nonrecoverable Advances, the party
entitled to such reimbursement shall notify the Rating Agencies at
least fifteen (15) days prior to such reimbursement, unless
circumstances exist that are extraordinary in the sole discretion of
such party, and (b) if and to the extent that
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the amount of such a Nonrecoverable Advance (and Advance Interest
thereon), together with all Nonrecoverable Advances (and Advance
Interest thereon) theretofore reimbursed during such Collection
Period, would exceed such principal on the Mortgage Loans for such
Collection Period (and Advance Interest thereon), such Master Servicer
(and the Trustee or the Fiscal Agent, as applicable, if it made the
relevant Advance) is hereby authorized (but shall not be construed to
have any obligation whatsoever), if it elects at its sole option, to
abstain from reimbursing itself (notwithstanding that it is entitled
to such reimbursement) during that Collection Period for all or a
portion of such Nonrecoverable Advance (and Advance Interest thereon),
provided that the aggregate amount that is deferred with respect to
all Nonrecoverable Advances (and Advance Interest thereon) with
respect to all Mortgage Loans for any particular Collection Period is
less than or equal to such excess described above in this clause (b).
If such Master Servicer (or the Trustee or the Fiscal Agent, as
applicable) makes such an election at its sole option to defer
reimbursement with respect to all or a portion of a Nonrecoverable
Advance (and Advance Interest thereon), then such Nonrecoverable
Advance (and Advance Interest thereon) or portion thereof shall
continue to be fully reimbursable in any subsequent Collection Period
to the same extent as set forth above. In connection with a potential
election by such Master Servicer to abstain from the reimbursement of
a particular Nonrecoverable Advance or portion thereof during the
Collection Period for any Distribution Date, such Master Servicer (or
the Trustee or the Fiscal Agent, as applicable) shall further be
authorized to wait for principal collections to be received before
making its determination of whether to abstain from the reimbursement
of a particular Nonrecoverable Advance or portion thereof until the
end of the Collection Period.
The reimbursements of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts set forth in clauses (iii) and (iv) above shall take
into account the allocation of amounts described in the last sentence of
the definition of "Liquidation Realized Loss."
None of the Master Servicers, the Trustee or the Fiscal Agent
shall have any liability whatsoever for making an election, or refraining
from making an election, that is authorized under this subsection (II)(iv).
The foregoing shall not, however, be construed to limit any liability that
may otherwise be imposed on such Person for any failure by such Person to
comply with the conditions to making such an election under this subsection
(II)(iv) or to comply with the terms of this subsection (II)(iv) and the
other provisions of this Agreement that apply once such an election, if
any, has been made.
Any election by a Master Servicer (or the Trustee or the Fiscal
Agent, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof
with respect to any Collection Period shall not be construed to impose on
such Master Servicer (or the Trustee or the Fiscal Agent, as applicable)
any obligation to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election) with respect to
any subsequent
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Collection Period or to constitute a waiver or limitation on the right of
such Master Servicer (or the Trustee or the Fiscal Agent, as applicable) to
otherwise be reimbursed for such Nonrecoverable Advance (and Advance
Interest thereon). Any election by a Master Servicer, the Trustee or the
Fiscal Agent to abstain from reimbursing itself for any Nonrecoverable
Advance or portion thereof with respect to any one or more Collection
Periods shall not limit the accrual of Advance Interest on the unreimbursed
portion of such Nonrecoverable Advance for the period prior to the actual
reimbursement of such Nonrecoverable Advance. None of the Master Servicers,
the Trustee, the Fiscal Agent or the other parties to this Agreement shall
have any liability to one another or to any of the Certificateholders or
any holder of a B Note or Serviced Companion Mortgage Loan for any such
election that such party makes as contemplated by this subsection or for
any losses, damages or other adverse economic or other effects that may
arise from such an election. The foregoing statements in this paragraph
shall not limit the generality of the statements made in the immediately
preceding paragraph. Notwithstanding the foregoing, none of the Master
Servicers, the Trustee or the Fiscal Agent shall have the right to abstain
from reimbursing itself for any Nonrecoverable Advance to the extent of the
amount described in clause (I)(A) of the definition of Principal
Distribution Amount.
(v) Reimbursement Rights of the Master Servicers, Special
Servicer, Trustee and Fiscal Agent Are Senior. Nothing in this
Agreement shall be deemed to create in any Certificateholder a right
to prior payment of distributions over a Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's right to
reimbursement for Advances plus Advance Interest (whether those that
constitute Workout-Delayed Reimbursement Amounts, those that have been
the subject of a Master Servicer's election authorized in subsection
(iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the applicable
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate, provided, however, that as to the Mortgage Loans set
forth on Schedule XI, for which the Scheduled Payment due each month is due on a
Due Date (including any grace period) that may occur after the end of the
Collection Period in such month, sums received by the applicable Master Servicer
with respect to such Scheduled Payment but after the end of such Collection
Period shall be applied by such Master Servicer to reimburse any related P&I
Advance made pursuant to Section 5.1(h), and such Master Servicer shall remit to
the Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments and Balloon Payments received after the end of
such Collection Period but no later than the second Business Day immediately
preceding such Master Servicer Remittance Date on the Mortgage Loans set forth
on Schedule XI. The applicable Master Servicer shall use its best efforts to
remit to the Distribution Account on any Master Servicer Remittance Date for a
Collection Period any Balloon Payments received after the date that is two
Business Days immediately preceding the related Master Servicer Remittance Date
and prior to the Distribution Date. In connection with the deposit of any
Balloon Payments to the Distribution Account in accordance with the immediately
preceding sentence, the applicable Master Servicer shall promptly notify the
Paying Agent and the Paying Agent shall, if it has already reported anticipated
distributions to the
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Depository, use commercially reasonable efforts to cause the Depository to make
the revised distribution on a timely basis on such Distribution Date. Neither
the applicable Master Servicer nor the Paying Agent shall be liable or held
responsible for any resulting delay or failure in the making of such
distribution to Certificateholders or for any interest shortfall resulting from
such a delay or failure. For purposes of the definition of "Available
Distribution Amount" and "Principal Distribution Amount," (i) the Scheduled
Payments relating to the Mortgage Loans set forth on Schedule XI that are
collected after the end of the related Collection Period and (ii) Principal
Prepayments and Balloon Payments relating to the Mortgage Loans set forth on
Schedule XI received after the end of the related Collection Period but prior to
the Master Servicer Remittance Date shall each be deemed to have been collected
in the prior Collection Period, in each such case, to the extent that the
applicable Master Servicer remits those payments within the time frames
contemplated above for such Collection Period.
SECTION 5.3 DISTRIBUTION ACCOUNT, RESERVE ACCOUNT AND INTEREST RESERVE
ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii) and (iii), on or prior to the date the Paying Agent determines is
necessary) and maintain in its name, on behalf of the Trustee, (i) an account
(the "Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank, National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ6, Distribution Account," (ii) an account (the "Reserve Account") to be
held in trust for the benefit of the holders of interests in the Trust until
disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo Bank,
National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ6, Reserve Account" and (iii) an account (the "Interest Reserve Account")
to be held in trust for the benefit of the Holders until disbursed pursuant to
the terms of this Agreement, titled: "Xxxxx Fargo Bank, National Association,"
as Paying Agent on behalf of LaSalle Bank National Association, as Trustee in
trust, for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6." The
Distribution Account, the Reserve Account and the Interest Reserve Account shall
be Eligible Accounts. Funds in the Reserve Account shall not be invested. The
Distribution Account and Reserve Account shall be held separate and apart from
and shall not be commingled with any other monies including, without limitation,
other monies of the Paying Agent held under this Agreement. The Interest Reserve
Account may be a sub-account of the Distribution Account.
Funds in the Distribution Account and the Interest Reserve Account may
be invested and, if invested, shall be invested by, and at the risk of, the
Paying Agent in Eligible Investments selected by the Paying Agent which shall
mature, unless payable on demand, not later than such time on the Distribution
Date which will allow the Paying Agent to make withdrawals from the Distribution
Account under Section 5.3(b), and any such Eligible Investment shall not be sold
or disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "LaSalle Bank National Association, as
Trustee for the Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-
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Through Certificates, Series 2005-HQ6 and the holder of any related B Note as
their interests may appear." None of the Depositor, the Mortgagors, the Special
Servicer, the Master Servicers or the Trustee shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account or the
Interest Reserve Account, as the case may be, out of its own funds immediately
as realized. If the Paying Agent deposits in or transfers to the Distribution
Account or the Interest Reserve Account, as the case may be, any amount not
required to be deposited therein or transferred thereto, it may at any time
withdraw such amount or retransfer such amount from the Distribution Account or
the Interest Reserve Account, as the case may be, any provision herein to the
contrary notwithstanding.
(b) The Paying Agent shall deposit into the Distribution Account or
the Reserve Account, as applicable, on the Business Day received all moneys
remitted by each Master Servicer pursuant to this Agreement, including P&I
Advances made by each Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. The Paying Agent shall deposit amounts constituting
collections of Excess Interest on the Mortgage Loans into the Excess Interest
Sub-account. On any Master Servicer Remittance Date, the Master Servicers shall
have no duty to remit to the Distribution Account any amounts other than amounts
held in the applicable Certificate Account and collected during the related
Collection Period as provided in clauses (v) and (xi) of Section 5.2(a) and the
P&I Advance Amount. The Paying Agent shall make withdrawals from the
Distribution Account (including the Excess Interest Sub-account) and the Reserve
Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicers, the
Special Servicer, the Fiscal Agent and the Trustee (including the Trustee's Fee
(other than that portion thereof, that constitutes the Paying Agent's Fee)) and
the Paying Agent (including the Paying Agent Fee), or other expenses or other
amounts permitted to be paid hereunder and not previously paid to such Persons
pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.5; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On each Distribution Date in March of every year commencing in
March 2006, the Paying Agent shall withdraw all amounts then in the Interest
Reserve Account and deposit such amounts into the Distribution Account.
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SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Servicer Report Administrator and
the Special Servicer and delivered to the Paying Agent by the Servicer Report
Administrator (no later than 1:00 p.m., New York time on the Report Date), the
Paying Agent shall make available to any interested party via its internet
website initially located at "xxx.xxxxxxx.xxx/xxxx" (the "Paying Agent's
Website"), (i) the Monthly Certificateholders Report (substantially in the form
of Exhibit M), (ii) a report containing information regarding the Mortgage Loans
as of the end of the related Collection Period, which report shall contain
substantially the categories of information regarding the Mortgage Loans set
forth in Appendix I to the Final Prospectus Supplement and shall be presented in
tabular format substantially similar to the format utilized in such Appendix I
which report may be included as part of the Monthly Certificateholders Report,
(iii) the Loan Periodic Update File, Loan Setup File, Bond Level File and the
Collateral Summary File, (iv) the CMSA Advance Recovery Report, (v) the
supplemental reports set forth in paragraph (b) of the definition of
Unrestricted Servicer Reports and (vi) as a convenience for interested parties
(and not in furtherance of the distribution thereof under the securities laws),
the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Servicer Report
Administrator and the Special Servicer and delivered to the Paying Agent in
accordance herewith, the Paying Agent shall make available via the Paying
Agent's Website, on a restricted basis, the Restricted Servicer Reports
(including the Property File on or prior to each Distribution Date, commencing
in October 2005). The Paying Agent shall provide access to the Restricted
Servicer Reports, upon request, to each Certificateholder, to the holder of a B
Note, each of the parties to this Agreement, each of the Rating Agencies, each
of the Financial Market Publishers, each of the Underwriters, the Operating
Adviser, the Placement Agents, any prospective purchaser of the Certificates and
any Certificate Owner upon receipt (which may be in electronic form) from such
person of an Investor Certificate in the form of Exhibit Y, and any other person
upon the direction of the Depositor, the Placement Agents or any Underwriter.
For assistance with the above-mentioned Paying Agent services,
Certificateholders or any party hereto may initially call 000-000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Servicer Report Administrator or the Special Servicer and
shall have no obligation to verify such information and the Paying Agent may
disclaim responsibility for any information distributed by the Paying Agent for
which it is not the original source. In connection with providing access to the
Paying Agent's Website, the Paying Agent, may require registration and the
acceptance of a disclaimer. None of the Master Servicers, the Special Servicer
or the Paying Agent shall be liable for the dissemination of information in
accordance with this Agreement; provided that this sentence shall not in any way
limit the liability the Paying Agent may otherwise have in the performance of
its duties hereunder.
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(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder (or holder of a Serviced
Companion Mortgage Loan or B Note) that is a savings association, bank, or
insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder (or such holder of a Serviced
Companion Mortgage Loan or B Note) such reports and access to non-privileged
information and documentation regarding the Mortgage Loans and the Certificates
as such Certificateholder (or such holder of a Serviced Companion Mortgage Loan
or B Note) may reasonably deem necessary to comply with applicable regulations
of the Office of Thrift Supervision or successor or other regulatory authorities
with respect to investment in the Certificates; provided that the Paying Agent
shall be entitled to be reimbursed by such Certificateholder (or such holder of
a Serviced Companion Mortgage Loan or B Note) for the Paying Agent's actual
expenses incurred in providing such reports and access. The holder of a B Note
shall be entitled to receive information and documentation only with respect to
its related A/B Mortgage Loan and the holder of a Serviced Companion Mortgage
Loan shall be entitled to receive information and documentation only with
respect to its related Loan Pair, pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the Financial
Market Publishers, the Depositor, the Master Servicers, the Special Servicer,
the Trustee, the Fiscal Agent, the Operating Adviser, any Certificateholder, the
holder of a B Note (with respect to the related A/B Mortgage Loan), the
Luxembourg Paying Agent, prospective Certificate Owner or any Person reasonably
designated by any Placement Agent, or any Underwriter upon reasonable notice and
during normal business hours, reasonable access to all relevant, non-attorney
privileged and non-confidential records and documentation regarding the
applicable Mortgage Loans, REO Property and all other relevant matters relating
to this Agreement, and access to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicers, the Special Servicer, the Trustee, the Fiscal
Agent, the Operating Adviser, any Placement Agent or any Underwriter or any
Rating Agency) of a sum sufficient to cover the reasonable expenses actually
incurred by the Paying Agent of providing access or copies (including electronic
or digital copies) of any such information requested in accordance with the
preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, the Placement Agents, the
Underwriters, each Rating Agency, the Special Servicer, the
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Depositor, and solely as with respect to any A/B Mortgage Loan, the holder of
the B Note and solely as with respect to any Loan Pair, the holder of the
Serviced Companion Mortgage Loan, originals or copies of, among other things,
any Phase I Environmental Report or engineering report prepared or appraisals
performed in respect of each Mortgaged Property provided, however, that the
Paying Agent shall be permitted to require payment by the requesting party
(other than either Rating Agency or the Operating Adviser) of a sum sufficient
to cover the reasonable expenses actually incurred by the Paying Agent or the
Trustee of providing access or copies (including electronic or digital copies)
of any such information reasonably requested in accordance with the preceding
sentence.
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SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool and the Excess Interest Grantor Trust under the Code, REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority. Consistent with this Pooling and
Servicing Agreement, the Paying Agent shall provide or cause to be provided (i)
to the United States Treasury or other Persons (including, but not limited to,
the Transferor of a Class R-I, Class R-II or Class R-III Certificate, to a
Disqualified Organization or to an agent that has acquired a Class R-I, Class
R-II or Class R-III Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Class R-I, Class R-II or Class R-III Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions; in the case of (i),
subject to reimbursement of expenses relating thereto in accordance with Section
7.12. Each Master Servicer shall on a timely basis provide the Paying Agent with
such information concerning the Mortgage Loans as is necessary for the
preparation of the tax or information returns or receipts of each REMIC Pool and
the Excess Interest Grantor Trust as the Paying Agent may reasonably request
from time to time. The Special Servicer is required to provide to the applicable
Master Servicer all information in its possession with respect to the Specially
Serviced Mortgage Loans in order for such Master Servicer to comply with its
obligations under this Section 5.5. The Paying Agent shall be entitled to
conclusively rely on any such information provided to it by the Master Servicers
or the Special Servicer and shall have no obligation to verify any such
information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Fiscal Agent and Trustee any unpaid fees, expenses and other
amounts then required to be paid pursuant to this Agreement, and then, to the
Paying Agent, any unpaid fees, expenses and other amounts then required to be
paid pursuant to this Agreement, and then at the written direction of the
applicable Master Servicer, withdraw from the Distribution Account and pay to
such Master Servicer and Special Servicer any unpaid servicing compensation or
other amounts currently required to be paid pursuant to this Agreement (to the
extent not previously retained or withdrawn by such Master Servicer from the
applicable Certificate Account), and (2) second, make distributions in the
manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final
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distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at such location specified by the Paying Agent
in a notice delivered to Certificateholders pursuant to Section 10.2(a). If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day without compensation for such delay. All distributions or
allocations made with respect to Holders of Certificates of a Class on each
Distribution Date shall be made or allocated among the outstanding Interests in
such Class in proportion to their respective initial Certificate Balances or
Percentage Interests for the Class X Certificates.
SECTION 6.2 REMIC I
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest (other than any Excess Interest) collected or deemed
collected on or with respect to each Mortgage Loan or related REO Property
Distributable Certificate Interest to each Corresponding REMIC I Regular
Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or related REO Property principal to the Corresponding REMIC
I Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds with respect to each Mortgage Loan
(other than Excess Interest) or related REO Property, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, at the applicable
Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests have been
reduced to zero, and Realized Losses previously allocated thereto have been
reimbursed to the Holders of the REMIC I Regular Interests, any amounts
remaining with respect to each Mortgage Loan (other than Excess Interest) or
related REO Property, to the extent of the Trust's interest therein.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular
Interests amounts distributable to any Class of Principal Balance Certificates
pursuant to Section 6.5 or Section 10.1 to its Corresponding REMIC II Regular
Interest set forth in the Preliminary Statement hereto; provided that interest
shall be deemed to have been distributed pro rata among two or more
Corresponding REMIC II Regular Interests that correspond to a Class of Principal
Balance Certificates; and provided, further, that distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-1-
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1; second, to REMIC II Regular Interest A-1-2; and third, to REMIC II Regular
Interest A-1-3; in each case, until their respective Certificate Balances are
reduced to zero;
(ii) with respect to the Class A-1A Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-1A-1; second, to REMIC II Regular Interest A-1A-2; third, to
REMIC II Regular Interest A-1A-3; fourth, to REMIC II Regular Interest A-1A-4;
fifth, to REMIC II Regular Interest A-1A-5; sixth, to REMIC II Regular Interest
A-1A-6, to REMIC II Regular Interest A-1A-7; seventh, to REMIC II Regular
Interest A-1A-7; eighth, to REMIC II Regular Interest A-1A-8; and ninth, to
REMIC II Regular Interest A-1A-9; in each case, until their respective
Certificate Balances are reduced to zero;
(iii) with respect to the A-2 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-2A; second, to REMIC II Regular Interest A-2B; and third, to
REMIC II Regular Interest A-2C; in each case, until their respective Certificate
Balances are reduced to zero;
(iv) with respect to the Class A-4A Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-4A-1; second, to REMIC II Regular Interest A-4A-2; third, to
REMIC II Regular Interest A-4A-3; fourth, to REMIC II Regular Interest A-4A-4;
and fifth, to REMIC II Regular Interest A-4A-5; in each case, until their
respective Certificate Balances are reduced to zero;
(v) with respect to the Class D Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest D-1; and second, to REMIC II Regular Interest D-2; in each
case, until their respective Certificate Balances are reduced to zero;
(vi) with respect to the Class E Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest E-1; and second, to REMIC II Regular Interest E-2; in each
case, until their respective Certificate Balances are reduced to zero;
(vii) with respect to the Class F Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest F-1; and second, to REMIC II Regular Interest F-2; in each
case, until their respective Certificate Balances are reduced to zero;
(viii) with respect to the Class H Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest H-1; and second, to REMIC II Regular Interest H-2; in each
case, until their respective Certificate Balances are reduced to zero;
(ix) with respect to the Class J Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest J-1; and second, to REMIC II Regular Interest J-2; in each
case, until their respective Certificate Balances are reduced to zero; and
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(x) with respect to the Class K Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest K-1; and second, to REMIC II Regular Interest K-2; in each
case, until their respective Certificate Balances are reduced to zero.
(b) All distributions made in respect of the Class X-1 and Class X-2
Certificates on each Distribution Date pursuant to Section 6.5 or Section 10.1,
and allocable to any particular Component of such Class of Certificates in
accordance with the definitions of "Class X-1 Strip Rate" and "Class X-2 Strip
Rate" and distributed pursuant to Section 6.5 shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of such Component's
Corresponding REMIC II Regular Interest. All distributions of reimbursements of
Realized Losses made in respect of any Class of Principal Balance Certificates
on each Distribution Date pursuant to Section 6.5 shall be deemed to have first
been distributed from REMIC II to REMIC III in respect of its Corresponding
REMIC II Regular Interest set forth in the Preliminary Statement hereto;
provided, however, that distributions of reimbursements of Realized Losses shall
be deemed to have been distributed among two or more Corresponding REMIC II
Regular Interests that correspond to a Class of Principal Balance Certificates
in the reverse order of the priority set forth in Section 6.6(d) for allocation
for Realized Losses, up to the amount of Realized Losses previously allocated to
such REMIC II Regular Interest. Any amounts remaining in the Distribution
Account with respect to REMIC II on any Distribution Date after the foregoing
distributions shall be distributed to the holders of the Class R-II
Certificates.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III AND EXCESS INTEREST GRANTOR TRUST.
(a) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the Available Distribution Amount
and shall distribute such amount (other than the amount attributable to any
Excess Interest, which shall be distributed in accordance with Section 6.5(c))
and Excess Liquidation Proceeds in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2A Certificates, Class A-2B Certificates, Class A-AB
Certificates, Class A-3 Certificates, Class A-4A Certificates, Class A-4B
Certificates, Class X-1 Certificates and Class X-2 Certificates, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-AB Certificates, Class A-3 Certificates, Class
A-4 Certificates, the Distributable Certificate Interest in respect of
each such class for such Distribution Date (which shall be payable
from amounts in the Available Distribution Amount attributable to Loan
Group 1), pro rata in proportion to the Distributable Certificate
Interest payable in respect of each such class; provided that interest
distributed to the Class A-2 Certificates will be applied first to
Class A-2A up to its interest entitlements and then to Class A-2B up
to its interest entitlements, provided further that interest
distributed to the Class A-4 Certificates
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will be applied first to Class A-4A up to its interest entitlements
and then to Class A-4B up to its interest entitlements;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest in respect of such class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 2);
(C) to the Holders of the Class X-1 and Class X-2 Certificates,
the Distributable Certificate Interest in respect of each such class
for such Distribution Date, pro rata in proportion to the
Distributable Certificate Interest payable in respect of each such
class;
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in full the
total amount of interest to be distributed with respect to any of the Class A
Senior Certificates or the Class X Certificates on such Distribution Date as
described above, the Available Distribution Amount will be allocated among all
those classes pro rata in proportion to the respective amounts of interest
payable thereon for such Distribution Date, without regard to loan group,
provided that interest distributed to the Class A-2 Certificates will be applied
first to Class A-2A up to its interest entitlements and then to Class A-2B up to
its interest entitlements, provided further that interest distributed to the
Class A-4 Certificates will be applied first to Class A-4A up to its interest
entitlements and then to Class A-4B up to its interest entitlements;
(ii) concurrently:
(A) to the Holders of the Class A-1, Class A-2, Class A-AB, Class
A-3, and Class A-4 Certificates: first to the Holders of the Class
A-AB Certificates, the Loan Group 1 Principal Distribution Amount for
such Distribution Date and, after the Certificate Balance of the Class
A-1A Certificates have been reduced to zero, the Loan Group 2
Principal Distribution Amount for such Distribution Date, until the
aggregate Certificate Balance of the Class A-AB Certificates has been
reduced to the Planned Principal Balance for such Distribution Date;
the portion of the Loan Group 2 Principal Distribution Amount
distributed hereunder will be reduced by any portion thereof
distributed to the Holders of the Class A-1A Certificates, second,
upon payment to the Class A-AB Certificates of the above distribution,
to the Holders of the Class A-1 Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-1A Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution Amount for
such Distribution Date, until the aggregate Certificate Balance of the
Class A-1 Certificates has been reduced to zero; the portion of the
Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder will be reduced by any
portion thereof distributed to the Holders of the Class A-AB
Certificates (in respect of the Planned Principal Balance) and (solely
with respect to the Loan Group 2 Principal Distribution Amount) Class
A-1A Certificates, third, upon payment in full of the aggregate
Certificate Balance of the Class A-1 Certificates,
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to the Holders of the Class A-2A Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-1A Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution Amount, until
the aggregate Certificate Balance of the Class A-2A Certificates has
been reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount and Loan Group 2 Principal Distribution Amount
distributed hereunder will be reduced by any portion thereof
distributed to the Holders of the Class A-AB Certificates (in respect
of the Planned Principal Balance), Class A-1 Certificates and (solely
with respect to the Loan Group 2 Principal Distribution Amount) Class
A-1A Certificates, fourth, upon payment in full of the aggregate
Certificate Balance of the Class A-2A Certificates, to the Holders of
the Class A-2B Certificates, the Loan Group 1 Principal Distribution
Amount for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates have been reduced to zero, the Loan
Group 2 Principal Distribution Amount, until the aggregate Certificate
Balance of the Class A-2B Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and Loan
Group 2 Principal Distribution Amount distributed hereunder will be
reduced by any portion thereof distributed to the Holders of the Class
A-AB Certificates (in respect of the Planned Principal Balance), Class
A-1 Certificates, Class A-2A Certificates and (solely with respect to
the Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates, fifth, upon payment in full of the aggregate Certificate
Balance of the Class A-2B Certificates, to the Holders of the Class
A-3 Certificates, the Loan Group 1 Principal Distribution Amount for
such Distribution Date and, after the Certificate Balance of the Class
A-1A Certificates have been reduced to zero, the Loan Group 2
Principal Distribution Amount, until the aggregate Certificate Balance
of the Class A-3 Certificates has been reduced to zero; the portion of
the Loan Group 1 Principal Distribution Amount and Loan Group 2
Principal Distribution Amount distributed hereunder will be reduced by
any portion thereof distributed to the Holders of the Class A-AB
Certificates (in respect of the Planned Principal Balance), Class A-1
Certificates, Class A-2A Certificates, Class A-2B Certificates and
(solely with respect to the Loan Group 2 Principal Distribution
Amount) Class A-1A Certificates, sixth, upon payment in full of the
aggregate Certificate Balance of the Class A-3 Certificates, to the
Holders of the Class A-AB Certificates, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates have been reduced
to zero, the Loan Group 2 Principal Distribution Amount, until the
aggregate Certificate Balance of the Class A-AB Certificates has been
reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount and Loan Group 2 Principal Distribution Amount
distributed hereunder will be reduced by any portion thereof
distributed to the Holders of the Class A-AB Certificates (in respect
of the Planned Principal Balance), Class A-1 Certificates, Class A-2A
Certificates, Class A-2B Certificates, Class A-3 Certificates and
(solely with respect to the Loan Group 2 Principal Distribution
Amount) Class A-1A Certificates, seventh, upon payment in full of the
aggregate Certificate Balance of the Class A-AB and Class A-3
Certificates, to the Holders of the Class A-4A Certificates, the Loan
Group 1
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Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-1A Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution Amount, until
the aggregate Certificate Balance of the Class A-4A Certificates has
been reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount and Loan Group 2 Principal Distribution Amount
distributed hereunder will be reduced by any portion thereof
distributed to the Holders of the Class A-AB Certificates, Class A-1
Certificates, Class A-2A Certificates, Class A-2B Certificates, Class
A-3 Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates, eighth, upon
payment in full of the aggregate Certificate Balance of the Class A-4A
Certificates, to the Holders of the Class A-4B Certificates, the Loan
Group 1 Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution Amount, until
the aggregate Certificate Balance of the Class A-4B Certificates has
been reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount and Loan Group 2 Principal Distribution Amount
distributed hereunder will be reduced by any portion thereof
distributed to the Holders of the Class A-AB Certificates, Class A-1
Certificates, Class A-2A Certificates, Class A-2B Certificates, Class
A-3 Certificates, Class A-4A Certificates and (solely with respect to
the Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates; and
(B) to the Holders of the Class A-1A Certificates, the Loan Group
2 Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-4 Certificates have been
reduced to zero, the Loan Group 1 Principal Distribution Amount for
such Distribution Date, until the aggregate Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the portion of the
Loan Group 1 Principal Distribution Amount will be reduced by any
portion thereof distributed to the Holders of the Class A-AB, Class
A-1, Class A-2, Class A-3 and Class A-4 Certificates;
(iii) to the Holders of the Class A Senior Certificates, Class
X-1 Certificates and Class X-2 Certificates, pro rata in proportion to their
respective entitlements to reimbursement described in this clause (treating
principal and interest losses separately), to reimburse any Realized Losses
previously allocated thereto and not previously fully reimbursed (in the case of
the Class X Certificates, insofar as Realized Losses have resulted in short
falls in the amount of interest distributed other than by reason of a reduction
of the Notional Amount), plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses; provided that, such amounts in
respect of the Class A-2 Certificates will be allocated first to the Class A-2A
Certificates until such Realized Losses are reimbursed, together with all
interest at the applicable Pass-Through Rate, and then to the Class A-2B
Certificates, provided further, that, such amounts in respect of the Class A-4
Certificates will be allocated first to the Class A-4A Certificates until such
Realized Losses are reimbursed, together with all interest at the applicable
Pass-Through Rate, and then to the Class A-4B Certificates;
(iv) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
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(v) upon payment in full of the Certificate Balance of the Class
A-4B and Class A-1A Certificates, to the holders of the Class A-J Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions hereunder), until the Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(vi) to the Holders of the Class A-J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(vii) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Certificate Balance of the
Class A-J Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class B
Certificates has been reduced to zero;
(ix) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(x) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the Class
B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(xii) to the Holders of the Class C Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xiii) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the
Class C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(xv) to the Holders of the Class D Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xvi) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
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(xvii) upon payment in full of the Certificate Balance of the
Class D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xviii) to the Holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xix) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Certificate Balance of the Class
E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
(xxi) to the Holders of the Class F Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxii) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the
Class F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxiv) to the Holders of the Class G Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxv) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the
Class G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxvii) to the Holders of the Class H Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxviii) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution Date;
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(xxix) upon payment in full of the Certificate Balance of the
Class H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class J
Certificates has been reduced to zero;
(xxx) to the Holders of the Class J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxi) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) upon payment in full of the Certificate Balance of the
Class J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class K
Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxiv) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the
Class K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class L Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxvii) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of the
Class L Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class M
Certificates has been reduced to zero;
(xxxix) to the Holders of the Class M Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xl) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
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(xli) upon payment in full of the Certificate Balance of the
Class M Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
(xlii) to the Holders of the Class N Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xliii) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xliv) upon payment in full of the Certificate Balance of the
Class N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlv) to the Holders of the Class O Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xlvi) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) upon payment in full of the Certificate Balance of the
Class O Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class P
Certificates has been reduced to zero;
(xlviii) to the Holders of the Class P Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xlix) to the Holders of the Class Q Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) upon payment in full of the Certificate Balance of the Class
P Certificates, to the Holders of the Class Q Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class Q
Certificates has been reduced to zero;
(li) to the Holders of the Class Q Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(lii) to the Holders of the Class S Certificates, Distributable
Certificate Interest for such Distribution Date;
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(liii) upon payment in full of the Certificate Balance of the
Class Q Certificates, to the Holders of the Class S Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class S
Certificates has been reduced to zero;
(liv) to the Holders of the Class S Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(lv) to the Holders of the Class R-III Certificates at such time
as the Certificate Balances of all Classes of REMIC Regular Certificates have
been reduced to zero, and Realized Losses previously allocated to each Holder
have been reimbursed to the Holders of the REMIC Regular Certificates, any
amounts remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to the
Certificate Balances of all the Classes of Subordinate Certificates, the
Principal Distribution Amount will be distributed, first, to the Holders of the
Class A-1, Class A-1A, Class A-2, Class A-AB, Class A-3 and Class A-4
Certificates, pro rata, based on their respective Certificate Balances, in
reduction of their respective Certificate Balances, until the Certificate
Balance of each such Class is reduced to zero, provided that the Principal
Distribution Amounts distributed to the Class A-2 Certificates will be applied
first to the Class A-2A Certificates until the aggregate Certificate Balance of
such Class is reduced to zero and then to the Class A-2B Certificates until the
aggregate Certificate Balance of such Class is reduced to zero, provided
further, that, the Principal Distribution Amounts distributed to the Class A-4
Certificates will be applied first to the Class A-4A Certificates until the
aggregate Certificate Balance of such Class is reduced to zero and then to the
Class A-4B Certificates until the aggregate Certificate Balance of such Class is
reduced to zero; and, second, to the Holders of the Class A-1, Class A-1A, Class
A-2, Class A-AB, Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses previously allocated to each
such Class, plus one month's interest on such Realized Losses at the applicable
Pass-Through Rate, provided that such amounts with respect to the Class A-2
Certificates will be allocated first to the Class A-2A Certificates until such
unreimbursed losses are reimbursed, together with all applicable interest at the
applicable Pass-Through Rate, and then to the Class A-2B Certificates, provided
further, that, such amounts with respect to the Class A-4 Certificates will be
allocated first to the Class A-4A Certificates until such unreimbursed losses
are reimbursed, together with all applicable interest at the applicable
Pass-Through Rate, and then to the Class A-4B Certificates. A similar rule shall
apply to the distribution of the Principal Distribution Amount to REMIC II
Regular Interests X-0-0, X-0-0, X-0-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0,
A-1A-6, A-1A-7, A-1A-8, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X, X-XX, X-0, X-0X-0,
X-0X-0, X-0X-0, X-0X-0, X-0X-0 xxx X-0X; provided that sequential payments shall
be made to the REMIC II Regular Interests as set forth in clauses (i) through
(x) of Section 6.3(a).
(b) On each Distribution Date, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
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(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to reimbursement of
Realized Losses previously allocated to the REMIC II Regular Interests.
(c) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class T Certificates.
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances and treated as
Realized Principal Losses to the extent so allocated (and shall proportionately
reduce the Certificate Balance of each REMIC I Regular Interest) after making
all other allocations for such Distribution Date.
(b) In the event that the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, determines that an Advance (including
an Unliquidated Advance) previously made by it is a Nonrecoverable Advance and
such Master Servicer withdraws the amount of such Advance from the applicable
Certificate Account pursuant to Section 5.2(a) hereof (which amount shall be
treated as an Available Advance Reimbursement Amount pursuant to Section 4.6),
it shall determine the portion of the amount so withdrawn that is attributable
to (w) interest on the related Mortgage Loan; (x) principal on the related
Mortgage Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of
the amount so withdrawn from such Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to
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reduce the amount of interest paid on each REMIC I Regular Interest on such
Distribution Date in proportion to Distributable Certificate Interest otherwise
payable thereon, and shall result in Unpaid Interest on each such REMIC I
Regular Interest;
(ii) amounts previously advanced as principal on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the principal paid on each REMIC I Regular Interest
on which principal would otherwise be paid on such Distribution Date, in
proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as well
as Advance Interest owing to the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent with respect to Advances shall be
treated as Expense Losses and allocated in accordance with Section 6.6(a)(iii)
above.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the applicable Master
Servicer previously had withdrawn amounts from the applicable Certificate
Account following a determination that Advances (or Unliquidated Advances)
previously made were Nonrecoverable Advances, or at such other time as any other
Realized Loss shall occur with respect to any such Mortgage Loan, such Master
Servicer shall compute the Realized Loss with respect to such Mortgage Loan and
the Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.6(b)(ii) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.6(b)(i) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.6(b)(i) above;
(iii) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the applicable Certificate
Account that are treated as Recoveries of principal on the Mortgage Loan shall
be applied first, to make payments of principal on the Corresponding REMIC I
Regular Interest until the Realized Principal Losses previously allocated
thereto are reduced to zero and thereafter to make payments of principal to the
Corresponding REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(ii) above, in proportion
to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the applicable Certificate
Account that are
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treated as Recoveries of interest on the Mortgage Loan shall be applied first,
to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to Section 6.6(b)(i)
above in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest pursuant
to Section 6.6(b)(i) above; and
(v) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the applicable Certificate Account
that is treated as a recovery of expenses on the Mortgage Loan shall be applied
in reimbursement of Expense Losses on each REMIC I Regular Interest with respect
to which an Expense Loss was created pursuant to Section 6.6(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.6(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses on the
REMIC I Interests for such Distribution Date (or for prior Distribution Dates,
to the extent not previously allocated) shall be allocated to the Corresponding
REMIC II Regular Interests in the amounts and in the manner as are allocated to
the REMIC II Regular Interests related thereto pursuant to Section 6.6(f);
provided, however, that Realized Losses shall be allocated among two or more
Corresponding REMIC II Regular Interests that correspond to a Class of Principal
Balance Certificates sequentially in alphabetical and numerical order. Realized
Losses allocated to the Class X Certificates shall reduce the amount of interest
payable on the REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2,
REMIC II Regular Interest A-1-3, REMIC II Regular Interest A-1A-1, REMIC II
Regular Interest A-1A-2, REMIC II Regular Interest A-1A-3, REMIC II Regular
Interest A-1A-4, REMIC II Regular Interest A-1A-5, REMIC II Regular Interest
A-1A-6, REMIC II Regular Interest A-1A-7, REMIC II Regular Interest A-1A-8,
REMIC II Regular Interest A-1A-9, REMIC II Regular Interest A-2A-1, REMIC II
Regular Interest A-2A-2, REMIC II Regular Interest A-2A-3, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-AB, REMIC II Regular Interest A-3,
REMIC II Regular Interest A-4A-1, REMIC II Regular Interest A-4A-2, REMIC II
Regular Interest A-4A-3, REMIC II Regular Interest A-4A-4, REMIC II Regular
Interest A-4A-5, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E-1,
REMIC II Regular Interest E-2, REMIC II Regular Interest F-1, REMIC II Regular
Interest F-2, REMIC II Regular Interest G, REMIC II Regular Interest H-1, REMIC
II Regular Interest H-2,, REMIC II Regular Interest J-1, REMIC II Regular
Interest J-2, REMIC II Regular Interest K-1, REMIC II Regular Interest K-2,
REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N, REMIC II Regular Interest O, REMIC II Regular Interest P, REMIC II
Regular Interest Q and REMIC II Regular Interest S which reduction shall be
allocated pro rata based on the product of the Certificate Balance of such REMIC
II Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2
Strip Rate (if any) applicable to the Class of Certificates relating to such
REMIC II Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not
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previously allocated) shall be allocated to the REMIC III Regular Interests in
Reverse Sequential Order, in each case reducing (A) first, the Certificate
Balance of such Class until such Certificate Balance is reduced to zero (in the
case of the REMIC III Regular Interests other than the Class X Certificates);
(B) second, Unpaid Interest owing to such Class to the extent thereof and (C)
third, Distributable Certificate Interest owing to such Class, provided, that
such reductions shall be allocated among the Class A-1 Certificates, Class A-1A
Certificates, Class A-2A Certificates, Class A-2B Certificates, Class A-AB
Certificates, Class A-3 Certificates, Class A-4A Certificates, Class A-4B
Certificates, Class X-1 Certificates and Class X-2 Certificates, pro rata, based
upon their outstanding Certificate Balances or accrued interest, as the case may
be, provided further that Realized Losses allocated to the Class A-2
Certificates shall be allocated first to the Class A-2B Certificates and then to
the Class A-2A Certificates, provided further that Realized Losses allocated to
the Class A-4 Certificates shall be allocated first to the Class A-4B
Certificates and then to the Class A-4A Certificates and provided further still,
that Realized Losses shall not reduce the Aggregate Certificate Balance of the
REMIC III Regular Interests below the sum of the Aggregate Certificate Balances
of the REMIC II Regular Interests.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any Net Aggregate Prepayment Interest Shortfalls on the
REMIC III Regular Interests shall be allocated to each Class of Certificates,
pro rata, in proportion to the amount of Accrued Certificate Interest payable to
such Class of Certificates on such Distribution Date, in each case reducing
interest otherwise payable thereon. The amount of Net Aggregate Prepayment
Interest Shortfalls allocated to a Class of Certificates pursuant to the
preceding sentence shall reduce the Distributable Certificate Interest for such
Class for such Distribution Date. No Prepayment Interest Shortfall with respect
to a Serviced Companion Mortgage Loan or a B Note shall be allocated to any
Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee
payable to the applicable Master Servicer shall be adjusted as provided in
Section 8.10(c) herein. Any amount retained by REMIC I as a result of a
reduction of the Master Servicing Fee shall be treated as interest collected
with respect to the prepaid Mortgage Loans with respect to which the Master
Servicing Fee adjustment occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on which an
Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan, Loan
Pair or A/B Mortgage Loan, if the Principal Balance of such Mortgage Loan, Loan
Pair or A/B Mortgage Loan exceeds $2,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $2,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
standards or an Appraisal which in all cases shall be completed as of the date
that such
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Mortgage Loan, Loan Pair or A/B Mortgage Loan becomes a Required Appraisal Loan;
provided that if the Special Servicer had completed or obtained an Appraisal or
internal valuation within the immediately prior 12 months, the Special Servicer
may rely on such Appraisal or internal valuation and shall have no duty to
prepare a new Appraisal or internal valuation, unless such reliance would not be
in accordance with the Servicing Standard; provided, further, that if the
Special Servicer is required to obtain an Appraisal of a Mortgaged Property
after receipt of the notice described in clause (ii) of the definition of
Appraisal Event, such Appraisal will be obtained no later than 60 days after
receipt of such notice and an internal valuation will be obtained no later than
60 days after receipt of such notice. Notwithstanding the foregoing, an
Appraisal shall not be required so long as a guaranty or surety bond that is
rated at least "BBB-" (or its equivalent) by a nationally recognized statistical
rating organization, or debt service reserve or a letter of credit is available
and has the ability to pay off the then outstanding Principal Balance of the
Mortgage Loan in full, except to the extent that the Special Servicer, in
accordance with the Servicing Standard, determines that obtaining an Appraisal
is in the best interests of the Certificateholders. Such Appraisal or valuation
shall be conducted in accordance with the definition of "market value" as set
forth in 12 C.F.R. Section 225.62 and shall be updated at least annually to the
extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any
such Appraisal or valuation, if not performed by the Special Servicer, shall be
an expense of the Trust (and any related B Note) and may be paid from REO Income
or, to the extent collections from such related Mortgage Loan, B Note, Loan Pair
or Mortgaged Property does not cover the expense, such unpaid expense shall be,
subject to Section 4.4 hereof, advanced by the applicable Master Servicer at the
request of the Special Servicer or by the Special Servicer pursuant to Section
4.2 in which event it shall be treated as a Servicing Advance. The applicable
Master Servicer, based on the Appraisal or internal valuation provided to it by
the Special Servicer, shall calculate any Appraisal Reduction. The applicable
Master Servicer shall calculate or recalculate the Appraisal Reduction for any
Mortgage Loan, B Note and Loan Pair based on updated Appraisals or internal
valuations provided from time to time to it by the Special Servicer and report
such amount to the Trustee. Notwithstanding the foregoing, the terms of this
Section 6.9 shall not be applicable to any Non-Serviced Mortgage Loan if the
applicable Non-Serviced Mortgage Loan Special Servicer shall have performed such
obligations with respect to such Mortgage Loan pursuant to the terms of the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Paying Agent on
behalf of the Trustee shall comply with all federal withholding requirements
with respect to payments to Certificateholders of interest, original issue
discount, or other amounts that the Paying Agent reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be regarded
as distributed to the related Certificateholders for purposes of this Agreement.
In the event the Paying Agent withholds any amount from payments made to any
Certificateholder pursuant to federal withholding requirements, the Paying Agent
shall indicate to such Certificateholder the amount withheld.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium collected
with respect to a Mortgage Loan (but not a B Note or Serviced Companion Mortgage
Loan, which Prepayment Premium is payable to the holder of the related B Note or
the holder of the
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related Serviced Companion Mortgage Loan, as applicable) during any particular
Collection Period will be deemed distributed to the Trustee by the Paying Agent
on the following Distribution Date as follows: (i) first, the Paying Agent shall
be deemed to distribute to the Trustee, as holder of the REMIC I Regular
Interest to which such Mortgage Loan relates, any Prepayment Premiums collected
on or with respect to such Mortgage Loan; and (ii) second, the Paying Agent
shall be deemed to distribute to the Trustee, as holder of the REMIC II Regular
Interests, any Prepayment Premiums deemed distributed to the REMIC I Regular
Interests, and shall be deemed to distribute such Prepayment Premiums to the
REMIC II Regular Interest then entitled to distributions of principal from the
Principal Distribution Amount (or, if more than one Class of REMIC II Regular
Interests is then entitled to distributions of principal from the Principal
Distribution Amount, such Prepayment Premiums shall be deemed distributed among
such Classes pro rata in accordance with the relevant amounts of entitlements to
distributions of principal). Following such deemed distributions, the Holders of
the respective Classes of Principal Balance Certificates, other than the Class
J, Class K, Class L, Class M, Class N and Class O Certificates, then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Paying Agent on behalf of the
Trustee will pay to such Holder(s), an amount equal to, in the case of each such
Class, the product of (a) a fraction, the numerator of which is the amount
distributed as principal to the holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
holders of all Classes of Certificates on that Distribution Date, (b) the Base
Interest Fraction for the related Principal Prepayment and that Class of
Certificates and (c) the aggregate amount of Prepayment Premiums collected
during the related Collection Period. Any portion of such Prepayment Premium
that is not so distributed to the Holders of such Principal Balance Certificates
will be distributed to the Holders of the Class X Certificates. On any
Distribution Date on or before the Distribution Date in August 2012, 80% of such
Prepayment Premiums remaining after those distributions to the Holders of such
Principal Balance Certificates will be distributed to the Holders of the Class
X-1 Certificates and 20% of the Prepayment Premiums remaining after those
distributions to the Holders of such Principal Balance Certificates will be
distributed to the holders of the Class X-2 Certificates. After the Distribution
Date in August 2010, any of such Prepayment Premiums remaining after those
distributions to the Holders of such Principal Balance Certificates will be
distributed to the holders of the Class X-1 Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and during the
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continuation of any Event of Default hereunder, the Trustee and Fiscal Agent and
the Paying Agent each shall use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as applicable,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, which are specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by a Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee, the Fiscal Agent or
the Paying Agent shall request the providing party to correct the instrument and
if not so corrected, the Paying Agent shall inform the Certificateholders.
(c) Neither the Trustee, the Fiscal Agent nor the Paying Agent nor any
of their respective directors, officers, employees, agents or Controlling
Persons shall have any liability to the Trust or the Certificateholders arising
out of or in connection with this Agreement, except for their respective
negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee, the Fiscal Agent, the Paying Agent or any of
their respective directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in its reasonable business judgment in
accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
(ii) no provision of this Agreement shall require the Trustee,
the Fiscal Agent or the Paying Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of a Master
Servicer, the Special Servicer, the Depositor or either Seller, or for the acts
or omissions of each other, including, without limitation, in connection with
actions taken pursuant to this Agreement;
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(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent nor the Paying Agent
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Fiscal Agent or the Paying
Agent, as applicable in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the Trust, and
the Trustee, the Paying Agent and the Fiscal Agent shall be entitled to be
reimbursed therefor from the applicable Certificate Account pursuant to Section
5.2(a)(vi); and
(vi) neither the Trustee, the Fiscal Agent nor the Paying Agent
shall be charged with knowledge of any failure by a Master Servicer or the
Special Servicer or by each other to comply with its obligations under this
Agreement or any act, failure, or breach of any Person upon the occurrence of
which the Trustee, the Fiscal Agent or the Paying Agent may be required to act,
unless a Responsible Officer of the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, obtains actual knowledge of such failure.
(d) For so long as the Certificates are listed on the Luxembourg Stock
Exchange, the Depositor shall cause the continuing obligations under the listing
rules for the Luxembourg Stock Exchange to be complied with in respect of the
Certificates. The Trustee, the Fiscal Agent and the Paying Agent shall not be
liable for a failure in compliance with such continuing obligations under the
listing rules of the Luxembourg Stock Exchange if such failure is caused by the
negligence or willful misconduct of the Luxembourg Paying Agent.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT..
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent each may
request, and may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent each may
consult with counsel and the advice of such counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken, suffered or
omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
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(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this Agreement
or to institute, conduct or defend any litigation hereunder or relating hereto
or make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of at
least 25% of the Aggregate Certificate Balance of the Certificates then
outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent each may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, which agents or attorneys
shall have any or all of the rights, powers, duties and obligations of the
Trustee, the Fiscal Agent and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Fiscal Agent and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of a
Master Servicer, the Special Servicer, the Depositor or the actions or omissions
of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be liable for any loss on any investment of funds pursuant to this
Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall be required to post any
surety or bond of any kind in connection with the execution or performance of
its duties hereunder; and
(x) except as specifically provided hereunder in connection with
the performance of its specific duties, neither the Trustee nor the Fiscal Agent
nor the Paying Agent shall be responsible for any act or omission of a Master
Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall
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have received a Nondisqualification Opinion at the expense of the Person
desiring to contribute such assets with respect to such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Paying Agent of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT NOT
LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee, the Fiscal
Agent and the Paying Agent each makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC III Certificates or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee,
the Fiscal Agent and the Paying Agent represents that, assuming due execution
and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law.
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None of the Trustee, the Fiscal Agent or the Paying Agent shall be accountable
for the use or application by the Depositor or a Master Servicer or the Special
Servicer or by each other of any of the Certificates or any of the proceeds of
such Certificates, or for the use or application by the Depositor or the
applicable Master Servicer or the Special Servicer or by each other of funds
paid in consideration of the assignment of the Mortgage Loans to the Trust or
deposited into the Distribution Account or any other fund or account maintained
with respect to the Certificates or any account maintained pursuant to this
Agreement or for investment of any such amounts. No recourse shall be had for
any claim based on any provisions of this Agreement, the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement, the Prospectus or the Certificates (except with respect to the
Trustee and Fiscal Agent to the extent of information furnished by the Trustee
and the Fiscal Agent under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES - The Trustee and the Fiscal Agent" and with respect to the Paying
Agent, to the extent of information furnished by the Paying Agent under the
caption "DESCRIPTION OF THE OFFERED CERTIFICATES - The Paying Agent, Certificate
Registrar and Authenticating Agent" each in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement), the Mortgage Loans or the
assignment thereof against the Trustee, the Fiscal Agent or the Paying Agent in
such Person's individual capacity and any such claim shall be asserted solely
against the Trust or any indemnitor who shall furnish indemnity as provided
herein. Neither the Trustee nor the Fiscal Agent nor the Paying Agent shall be
liable for any action or failure of any action by the Depositor or a Master
Servicer or the Special Servicer or by each other hereunder. Neither the Trustee
nor the Fiscal Agent nor the Paying Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of the Mortgages or the Mortgage Loans, or the perfection and
priority of the Mortgages or the maintenance of any such perfection and
priority, or for or with respect to the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation, the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon; the validity of the assignment of the Mortgage Loans to the
Trust or of any intervening assignment; the completeness of the Mortgage Loans;
the performance or enforcement of the Mortgage Loans (other than if the Trustee
shall assume the duties of the applicable Master Servicer); the compliance by
the Depositor, each Seller, the Mortgagor or a Master Servicer or the Special
Servicer or by each other with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation made under this Agreement or in any related document prior to the
receipt by a Responsible Officer of the Trustee of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of a Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of a Master Servicer or any Sub-Servicer or the
Special Servicer to act or perform any duties required of it on behalf of the
Trustee hereunder; or any action by the Trustee taken at the instruction of a
Master Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying Agent in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be.
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SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT.
(a) The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association authorized to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority, and (iii) an institution whose
short-term debt obligations are at all times rated not less than "A-1" by S&P
and not less than "R-1(middle)" by DBRS or, if not rated by DBRS, an equivalent
rating such as that listed above by at least one nationally recognized
statistical rating organizations, and whose long-term senior unsecured debt, or
that of its fiscal agent, if applicable, is rated not less than "AA-" by Fitch
(or "A+" by Fitch if the Trustee's short-term unsecured debt is rated at least
"F-1" by Fitch), "A+" by S&P and "AA(low)" by DBRS (or, if not rated by DBRS, an
equivalent rating (such as those listed above for Fitch and S&P) by at least two
nationally recognized statistical rating organizations), provided, that if the
Fiscal Agent is rated at least "AA-" by Fitch (or "A+" by Fitch if the Fiscal
Agent's short-term unsecured debt is rated at least "F-1" by Fitch), the Fiscal
Agent also has a short-term rating of at least "F-1" by Fitch, "AA-" by S&P (or
"A+" by S&P if the Fiscal Agent's short-term unsecured debt is rated at least
"A-1" by S&P) and "AA(low)" by DBRS (or, if not rated by DBRS, an equivalent
rating (such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations), then the Trustee must be rated not
less than "A-" by Fitch, "A-" by S&P and "A(low)" by DBRS, or, if not rated by
DBRS, an equivalent rating such as those listed above by at least two nationally
recognized statistical rating organizations, or as otherwise acceptable to the
Rating Agencies as evidenced by a Rating Agency Confirmation. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Fiscal Agent shall resign
immediately in the manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
its long-term unsecured debt rated at least "A" by Fitch, "A" by S&P and "A" by
DBRS, unless and to the extent Rating Agency Confirmation is obtained.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL AGENT
OR THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicers and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee, fiscal agent or paying
agent, as the case may be, except in the case of the initial Trustee or Fiscal
Agent, in which case both shall be so replaced but may be replaced under this
paragraph sequentially, by written instrument,
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one copy of which instrument shall be delivered to the resigning Trustee or the
Fiscal Agent, one copy to the successor trustee and one copy to each of the
Master Servicers, the Paying Agent and the Rating Agencies. If no successor
trustee, fiscal agent or paying agent shall have been so appointed, as the case
may be, and shall have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee, fiscal agent or paying
agent, as the case may be. It shall be a condition to the appointment of a
successor trustee or fiscal agent that such entity satisfies the eligibility
requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) with respect with the initial Trustee, a
Fiscal Agent Termination Event has occurred unless the Trustee has satisfied the
ratings required by clause (iii) of Section 7.5, then the Depositor may remove
such Trustee and appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicers and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii), (iv) and (v)
above, the Trustee shall bear all such costs of transfer. Such succession shall
take effect after a successor trustee has been appointed. In the case of the
removal of the initial Trustee, the Depositor shall also remove the Fiscal Agent
in accordance with Section 7.6(c).
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(a) and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a written notice of
termination to the Fiscal Agent (which notice shall specify the reason for such
termination) and remove such Fiscal Agent and appoint a successor Fiscal Agent
by written instrument, one copy of which instrument shall be delivered to the
Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one copy to
each of the Trustee, the Master Servicers and the Rating Agencies. In all such
cases, the Fiscal Agent shall bear all costs of transfer to a successor Fiscal
Agent, such succession only to take effect after a successor Fiscal Agent has
been appointed. In the case of the initial Fiscal Agent, the Depositor must also
remove the Trustee in accordance with Section 7.6(b). On the date specified in a
written notice of termination given to the Fiscal Agent pursuant to this Section
7.6(c), all authority, power and right of the Fiscal Agent under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall terminate and a
successor Fiscal Agent, if necessary, shall be appointed by the Depositor;
provided that the successor Fiscal Agent meets the eligibility requirements set
forth in Section 7.5. The Fiscal Agent agrees to cooperate with the Depositor in
effecting the termination of the
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Fiscal Agent's responsibilities and rights hereunder as Fiscal Agent.
Notwithstanding the termination of its activities as Fiscal Agent, the
terminated Fiscal Agent shall continue to be entitled to reimbursement to the
extent provided in Section 4.6 but only to the extent such reimbursement relates
to the period up to and including the date on which the Fiscal Agent's
termination is effective. The Fiscal Agent shall be reimbursed for all amounts
owed to it hereunder on or prior to the effective date of its termination from
amounts on deposit in a Certificate Account.
(d) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(b) and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by the Rating Agencies, then the Depositor or the Trustee shall send a written
notice of termination to the Paying Agent (which notice shall specify the reason
for such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master
Servicers, the Operating Adviser and the Rating Agencies. In all such cases, the
Paying Agent shall bear all costs of transfer to a successor Paying Agent, such
succession only to take effect after a successor Paying Agent has been
appointed.
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding may for cause upon 30 days' written notice
to the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, and to
the Depositor remove the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, so removed; the Depositor shall thereupon use
its best efforts to appoint a successor Trustee, Fiscal Agent or Paying Agent,
as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, and appointment of a successor trustee, fiscal
agent or paying agent pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee, fiscal
agent or paying agent, as the case may be, as provided in Section 7.7. Upon any
succession of the Trustee, the Fiscal Agent or the Paying Agent under this
Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this Agreement for services rendered and expenses incurred. The
Trustee, the Fiscal Agent or the Paying Agent shall not be liable for any action
or omission of any successor Trustee, Fiscal Agent or Paying Agent, as the case
may be.
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SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee, Fiscal Agent or Paying Agent,
as the case may be, shall become effective and such successor Trustee, Fiscal
Agent or Paying Agent, as the case may be, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee, Fiscal Agent or Paying Agent herein. The predecessor Trustee,
Fiscal Agent or Paying Agent shall deliver (at such predecessor's own expense)
to the successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee,
Fiscal Agent or Paying Agent, as the case may be, shall also deliver all records
or copies thereof maintained by the predecessor Trustee, Fiscal Agent or Paying
Agent in the administration hereof as may be reasonably requested by the
successor Trustee, Fiscal Agent or Paying Agent, as applicable, and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor Trustee, Fiscal Agent
or Paying Agent shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee, Fiscal Agent or Paying Agent, as the case may
be, all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee, Fiscal Agent or Paying Agent, as the case may be, shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal
Agent or Paying Agent as provided in this Section, the successor Trustee, Fiscal
Agent or Paying Agent shall mail notice of the succession of such Trustee,
Fiscal Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the successor Trustee, Fiscal Agent
or Paying Agent. If the successor Trustee, Fiscal Agent or Paying Agent fails to
mail such notice within 10 days after acceptance of appointment by the successor
Trustee, Fiscal Agent or Paying Agent, each Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee, Fiscal Agent or
Paying Agent, as applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR PAYING
AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent,
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shall be the successor of such Trustee, Fiscal Agent or Paying Agent, as the
case may be, hereunder, as applicable, provided that such Person shall be
eligible under the provisions of Section 7.5, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided, further, that, in addition to
the foregoing with respect to the Fiscal Agent (i) the successor to the Fiscal
Agent or resulting Person shall have a net worth of not less than $100,000,000,
(ii) such successor or resulting Person shall be satisfactory to the Trustee,
(iii) such successor or resulting Person shall execute and deliver to the
Trustee an agreement, in form and substance satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Fiscal Agent under this Agreement from and after the date of such agreement, and
(iv) the Fiscal Agent shall deliver to the Trustee an Officer's Certificate and
an Opinion of Counsel acceptable to the Trustee (which opinion shall be at the
expense of the Fiscal Agent) stating that all conditions precedent to such
action under this Section 7.8 have been completed and such action is permitted
by and complies with the terms of this Section 7.8.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicers or Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from time
to time appoint one or more independent third-party agents to perform all or any
portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this
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Agreement. In addition, neither the Trust nor the Certificateholders shall have
any liability or direct obligation to such agent. Notwithstanding the terms of
any such agreement, the Trustee or the Paying Agent, as the case may be, shall
remain at all times obligated and liable to the Trust and the Certificateholders
for performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to a Master Servicer hereunder) the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust or any
portion thereof in any such jurisdiction, shall be exercised and performed by
such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
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(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor; provided that the Trustee may not terminate the Paying Agent as
Authenticating Agent unless the Paying Agent shall be removed as Paying Agent
hereunder. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such
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Authenticating Agent shall be appointed unless eligible under the provisions of
Section 7.10(a). No Authenticating Agent shall have responsibility or liability
for any action taken by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent, the Certificate Registrar and the
Paying Agent and each of its respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action incurred without negligence or
willful misconduct on their respective part, arising out of, or in connection
with this Agreement, the Certificates and the acceptance or administration of
the trusts or duties created hereunder (including, without limitation, any
unanticipated loss, liability or expense incurred in connection with any action
or inaction of a Master Servicer, the Special Servicer or the Depositor or of
each other such Person hereunder but only to the extent the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, is
unable to recover within a reasonable period of time such amount from such third
party pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee, the Fiscal Agent, the
Certificate Registrar and the Paying Agent and each of their respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the Fiscal
Agent, the Certificate Registrar and the Paying Agent of the reports required to
be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, shall
have given the Depositor, the Master Servicers, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a Responsible
Officer of the Trustee, the Fiscal Agent, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, Master Servicers,
the Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Fiscal Agent's, Certificate Registrar's or Paying Agent's, as the
case may be, rights to indemnification herein unless the Depositor's defense of
such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may
be, shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
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(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may be,
their respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action; provided, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
made in any such Private Placement Memorandum, Preliminary Prospectus
Supplement, Final Prospectus Supplement or Prospectus in reliance upon and in
conformity with written information concerning the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, furnished to
the Depositor by or on behalf of such person specifically for inclusion therein.
It is hereby expressly agreed that the only written information provided by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is set forth in the case of the Trustee in the second,
fourth and fifth sentences and in the case of the Fiscal Agent in the
penultimate sentence under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee and the Fiscal Agent" and in the case of the Paying
Agent, the third and fourth sentences under the "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Paying Agent, Certificate Registrar and the Authenticating
Agent". The Trustee, the Fiscal Agent, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the
Sellers if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Person to indemnification hereunder, whereupon the Depositor shall assume the
defense of any such claim (with counsel reasonably satisfactory to such person)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Depositor shall not affect any rights the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 7.11(c), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination
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of this Agreement and the resignation or removal of the Trustee, the Fiscal
Agent or the Paying Agent. The Depositor shall not be indemnified by the Trust
for any expenses incurred by the Depositor arising from any violation or alleged
violation of the 1933 Act or 1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT, THE
PAYING AGENT AND THE SERVICER REPORT ADMINISTRATOR. The Trustee shall be
entitled to receive the Trustee Fee (other than the portion thereof constituting
the Paying Agent Fee), the Paying Agent shall be entitled to receive the Paying
Agent Fee, pursuant to Section 5.3(b)(ii) (which shall not be limited by any
provision of law with respect to the compensation of a trustee of an express
trust) and the Servicer Report Administrator shall be entitled to receive the
Servicer Report Administrator Fees, for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties respectively, hereunder of the Trustee, the Paying
Agent and the Servicer Report Administrator. The Trustee, the Fiscal Agent and
the Paying Agent shall also be entitled to recover from the Trust all reasonable
unanticipated expenses and disbursements incurred or made by the Trustee, the
Fiscal Agent and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee, Fiscal Agent or Paying Agent, respectively hereunder, and
except any such expense, disbursement or advance as may arise from the
negligence or bad faith of such Person or which is the responsibility of the
Holders of the Certificates hereunder. The provisions of this Section 7.12 shall
survive any termination of this Agreement and the resignation or removal of the
Trustee, the Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS
Except as otherwise expressly provided in this Agreement, the Trustee
and the Paying Agent may demand payment or delivery of, and shall receive and
collect, all money and other property payable to or receivable by the Trustee or
the Paying Agent, as the case may be, pursuant to this Agreement. The Trustee or
the Paying Agent, as the case may be, shall hold all such money and property
received by it as part of the Trust and shall distribute it as provided in this
Agreement. If the Trustee or the Paying Agent, as the case may be, shall not
have timely received amounts to be remitted with respect to the Mortgage Loans
from the applicable Master Servicer, the Trustee or the Paying Agent, as the
case may be, shall request such Master Servicer to make such distribution as
promptly as practicable or legally permitted. If the Trustee or the Paying
Agent, as the case may be, shall subsequently receive any such amount, it may
withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time a Master Servicer is terminated pursuant to
this Agreement, the Trustee shall be the successor in all respects to such
Master Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on such Master Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by such
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Master Servicer's failure to provide required information shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no liability relating to (i) the representations and warranties of such
Master Servicer contained in this Agreement or (ii) any obligation incurred by
such Master Servicer prior to its termination or resignation (including, without
limitation, such Master Servicer's obligation to repay losses resulting from the
investment of funds in any account established under this Agreement). In the
Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to such Master Servicer in this Agreement. As
compensation therefor, the Trustee shall be entitled to receive all the
compensation payable to such Master Servicer (other than Excess Servicing Fees
(subject to Section 8.10(a)) set forth in this Agreement, including, without
limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the applicable Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as a Master
Servicer hereunder. Pending any such appointment, the Trustee shall act as a
Master Servicer as hereinabove provided. Any entity designated by the Trustee as
a successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for a Master Servicer as set forth
herein. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on the
applicable Mortgage Loans as it and such successor shall agree subject to
Section 8.10. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such succession. The
applicable Master Servicer shall cooperate with the Trustee and any successor
servicer in effecting the termination of such Master Servicer's responsibilities
and rights under this Agreement, including, without limitation, notifying
Mortgagors of the assignment of the servicing function and providing the Trustee
and successor servicer all documents and records in its possession in electronic
or other form reasonably requested by the successor servicer to enable the
successor servicer to assume such Master Servicer's functions hereunder and the
transfer to the Trustee or such successor servicer of all amounts which shall at
the time be or should have been deposited by such Master Servicer in the
applicable Certificate Account and any other account or fund maintained with
respect to the Certificates or thereafter be received by such Master Servicer
with respect to the Mortgage Loans. Neither the Trustee nor any other successor
servicer shall be deemed to be in default hereunder by reason of any failure to
make, or any delay in making, any distribution hereunder or any portion thereof
caused by (i) the failure of the applicable Master Servicer to deliver, or any
delay in delivering, cash, documents or records to it, or (ii) restrictions
imposed by any regulatory authority having jurisdiction over such Master
Servicer. The Trustee shall be reimbursed for all of its out-of-pocket expenses
incurred in connection with obtaining such successor Master Servicer by the
Trust within 30 days of the Trustee's submission of an invoice with respect
thereto, to the extent such expenses have not been reimbursed by the applicable
Master Servicer as provided herein; such expenses paid by the Trust shall be
deemed to be an Additional Trust Expense.
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(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30 and not otherwise replaced by
the Operating Adviser, the Trustee shall be the successor in all respects to the
Special Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Special Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Special Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Special Servicer contained in this
Agreement or (ii) any obligation incurred by the Special Servicer prior to its
termination or resignation. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Special
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation (other than any Work-Out Fee payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
as the Special Servicer as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in a Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special
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Servicer. The Trustee shall be reimbursed for all of its out-of-pocket expenses
incurred in connection with obtaining such successor Special Servicer by the
Trust within 30 days of submission of an invoice with respect thereto but only
to the extent such expenses have not been reimbursed by the Special Servicer as
provided herein; and such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of a Master
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to such Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Operating Adviser, the Sellers and the Certificateholders at their
respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT .
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Trustee or its
properties that would materially and adversely affect the Trustee's ability to
perform its obligations under this Agreement, (ii) the organizational documents
of the Trustee, or (iii) the terms of any material agreement or instrument to
which the Trustee is a party or by which it is bound; the Trustee is not in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights
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generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the date
hereof that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Fiscal Agent or its properties that would materially and adversely affect the
Fiscal Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal Agent
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Fiscal Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's knowledge,
threatened, against the Fiscal Agent that, either in any one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Fiscal Agent to perform
under the terms of this Agreement.
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(c) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Paying Agent to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceedings pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent that,
either in one instance or in the aggregate, would draw into question the
validity of this Agreement, or which would be likely to impair materially the
ability of the Paying Agent to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of the
Trustee, the Fiscal Agent and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount
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customary for trustees, fiscal agents or paying agents in similar transactions
(unless the Trustee, the Fiscal Agent or the Paying Agent, as the case may be,
self insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, shall obtain a comparable
replacement policy or bond from an insurer or issuer meeting the requirements
set forth above as of the date of such replacement. So long as the long-term
debt rating of the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, is not less than "A" as rated by Fitch, if rated by Fitch, "A" as rated
by S&P, if rated by S&P, and "A" as rated by DBRS, if rated by DBRS or, if not
rated by DBRS, an equivalent rating such as those listed above by two nationally
recognized statistical rating organizations, respectively, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, may self-insure for the
Fidelity Bond and the Errors and Omissions Insurance Policy.
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT; NOTIFICATION TO
CERTIFICATEHOLDERS.
(a) The Depositor shall maintain a paying agent in Luxembourg (the
"Luxembourg Paying Agent") for payments on the Certificates as well as a
transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so long as
such Certificates are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require and the Depositor shall pay the reasonable fees of such
Luxembourg Paying Agent and Luxembourg Transfer Agent. The Depositor shall
appoint a successor Luxembourg Paying Agent if necessary. Except as set forth in
this Section 7.18(a), neither the Trustee nor the Paying Agent shall have any
responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes to cause the Luxembourg Paying Agent to publish all notices
to Certificateholders in a daily newspaper of general circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(i) to Clearstream Bank, Euroclear Bank and the Luxembourg Paying
Agent promptly upon determination, the Pass-Through Rates for the related
Interest Accrual
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Period, the amount of principal and interest distributable on the related
Distribution Date for each Class of Certificates, per $1,000 initial Certificate
Balance or Notional Amount and the date each distribution will be made;
(ii) to the Luxembourg Paying Agent on each Distribution Date,
the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any termination of the Trustee or
Paying Agent or appointment of a successor to the Trustee or Paying Agent; and
(v) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any occurrence of an Event of
Default.
Information provided, as set forth above, by the Paying Agent to the
Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent to the
Luxembourg Stock Exchange. Such information shall be made available to the
Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates will be listed on the Luxembourg Stock
Exchange or any other stock exchange.
SECTION 7.19 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent Termination
Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Paying Agent
when due any required Advance for any Mortgage Loan; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Fiscal Agent or of or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors,
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voluntarily suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing; or
(v) The long-term unsecured debt of the Fiscal Agent is rated
below "AA-" by Fitch (or "A+" by Fitch if the Fiscal Agent's short-term
unsecured debt is rated at least "F-1" by Fitch) or "AA-" by S&P (or "A+" by S&P
if the Fiscal Agent's short-term unsecured debt is rated at least "A-1" by S&P),
unless such other rating shall be acceptable to the Rating Agencies as evidenced
by a Rating Agency Confirmation; or
(vi) With respect to the initial Fiscal Agent, LaSalle Bank
National Association resigns or is removed as Trustee pursuant to Section 7.6
hereof.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, each
Master Servicer shall service and administer the Mortgage Loans, any B Note and
any Serviced Companion Mortgage Loan in accordance with the Servicing Standard
and the terms of this Agreement (subject to the servicing of any Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer in accordance with
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement). Certain
of the provisions of this Article VIII make explicit reference to their
applicability to Mortgage Loans, any B Note and any Serviced Companion Mortgage
Loan; notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article VIII, unless otherwise specified, shall be construed
to refer also to such B Note and Serviced Companion Mortgage Loan (but any other
terms that are defined in Article I and used in this Article VIII shall be
construed according to such definitions without regard to this sentence).
In connection with such servicing and administration, the applicable
Master Servicer shall seek to maximize the timely recovery of principal and
interest on the Mortgage Notes in the best economic interests of the
Certificateholders as a whole (or, in the case of any A/B Mortgage Loan or Loan
Pair, the Certificateholders and the holder of the related B Note and Serviced
Companion Mortgage Loan, all taken as a collective whole); provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the applicable Master Servicer of the collectability of payments on
the Mortgage Loans or shall be construed as impairing or adversely affecting any
rights or benefits specifically provided by this Agreement to the applicable
Master Servicer, including with respect to Master Servicing Fees or the right to
be reimbursed for Advances.
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(b) The applicable Master Servicer, in the case of an event specified
in clause (x) of this subclause (b), and the Special Servicer, in the case of an
event specified in clause (y) of this subclause (b), shall each send a written
notice to the other and to the Trustee and the Paying Agent, the Operating
Adviser, each Seller and, in the case of an A/B Mortgage Loan, the holder of the
related B Note and, in the case of a Loan Pair, the holder of the related
Serviced Companion Mortgage Loan, within two Business Days after becoming aware
(x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan
or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the applicable Master Servicer has actual knowledge of any
event giving rise to a claim under an Environmental Insurance Policy, such
Master Servicer shall notify the Special Servicer to such effect and such Master
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of such Environmental Insurance Policy to
make a claim thereunder and achieve the payment of all amounts to which the
Trust is entitled thereunder. Any legal fees or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with any such
claim shall be paid by, and reimbursable to, the applicable Master Servicer or
the Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan, the applicable Master Servicer shall give prompt written notice
of such extension to the insurer under the Environmental Insurance Policy and
shall execute such documents as are reasonably required by such insurer to
procure an extension of such policy (if available).
(e) The parties hereto acknowledge that each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan is subject to the terms and
conditions of the related Loan Pair Intercreditor Agreement and that the A/B
Mortgage Loans are subject to the terms and conditions of the related
Intercreditor Agreement, and each such party agrees that the provisions of each
Loan Pair Intercreditor Agreement and Intercreditor Agreement that are required
by their terms to be set forth in this Agreement are hereby incorporated herein.
With respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan and each A/B Mortgage Loan, the Trustee, the Fiscal Agent, the
applicable Master Servicer and the Special Servicer recognize the respective
rights and obligations of the Trust, the holders of each Serviced Companion
Mortgage Loan and the holders of each B Note under the related Loan Pair
Intercreditor Agreement or Intercreditor Agreement, as applicable, including,
with respect to the allocation of collections on or in respect of any Serviced
Pari Passu Mortgage Loan, Serviced Companion Mortgage Loan and any Mortgage Loan
and its related B Note in accordance with the related Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable. The applicable Master
Servicer shall comply with the applicable provisions of each Loan Pair
Intercreditor Agreement or Intercreditor Agreement, as applicable, and if any
Serviced Pari Passu Mortgage Loan, Serviced Companion Mortgage Loan or A/B
Mortgage Loan are then Specially Serviced Mortgage Loans, the Special Servicer
shall comply with the applicable provisions of the related Loan Pair
Intercreditor Agreement or Intercreditor Agreement, as applicable. The parties
hereto agree that any conflict between the terms of this Agreement and the terms
of any Loan Pair
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Intercreditor Agreement or Intercreditor Agreement, as applicable, shall be
resolved in favor of the Loan Pair Intercreditor Agreement or Intercreditor
Agreement.
(f) Promptly following the Closing Date, the Trustee shall send
written notice in the form of Exhibit DD (to the extent it has not already
provided such notice) to each Non-Serviced Mortgage Loan Master Servicer,
stating that, as of the Closing Date, the Trustee is the holder of the
applicable Non-Serviced Mortgage Loan, and directing such Non-Serviced Mortgage
Loan Master Servicer to remit to the applicable Master Servicer all amounts
payable to, and directing such Non-Serviced Mortgage Loan Master Servicer to
forward, deliver or otherwise make available, as the case may be, to, such
Master Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
such holder of the applicable Non-Serviced Mortgage Loan under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced
Mortgage Loan Intercreditor Agreement.
(g) Each Non-Serviced Mortgage Loan shall be serviced and administered
by the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced
Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement, except as otherwise specifically provided in this
Agreement. If any Non-Serviced Companion Mortgage Loan that is an asset under
the trust created by the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement is removed from the pool of mortgage loans created under
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such
Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise
terminated, the servicing of the Non-Serviced Mortgage Loan shall be
transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor
Agreement, and shall be serviced and administered by a successor servicing
agreement, which shall have similar provisions to such Non-Serviced Mortgage
Loan Pooling and Servicing Agreement to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be
subject to the receipt of a Rating Agency Confirmation.
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SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY EACH MASTER SERVICER. Each Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
applicable Master Servicer self insures as provided below) and be in form and
amount consistent with the Servicing Standard. In the event that any such
Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases
to be in effect, the applicable Master Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer meeting the requirements
set forth above as of the date of such replacement. So long as the long-term
rating of the applicable Master Servicer is not in any event less than "A" as
rated by Fitch, "BBB" as rated by S&P, and "A" as rated by DBRS (or, if not
rated by DBRS, an equivalent rating (such as those listed above for Fitch and
S&P) by two nationally recognized statistical rating organizations),
respectively, such Master Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The applicable Master Servicer shall service and administer the
Mortgage Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article
XII hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), such
power and authority shall include, without limitation, the right, subject to the
terms hereof, (A) to execute and deliver, on behalf of the Certificateholders
(and in connection with any B Note, the holder of the B Note and, in connection
with any Loan Pair, the holder of the Serviced Companion Mortgage Loan) and the
Trustee, customary consents or waivers and other instruments and documents
(including, without limitation, estoppel certificates, financing statements,
continuation statements, title endorsements and reports and other documents and
instruments necessary to preserve and maintain the lien on the related Mortgaged
Property and related collateral), (B) to consent to assignments and assumptions
or substitutions, and transfers of interest of any Mortgagor, in each case
subject to and in accordance with the terms of the related Mortgage Loan and
Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7,
to consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the applicable Master Servicer deems reasonable under the
circumstances, (F) to execute and deliver, on behalf of the Certificateholders
(and, if applicable, the holders of the B Note and Serviced Companion Mortgage
Loan) and the Trustee, documents relating to the management, operation,
maintenance,
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repair, leasing and marketing of the related Mortgaged Properties, including
agreements and requests by the Mortgagor with respect to modifications of the
standards of operation and management of the Mortgaged Properties or the
replacement of asset managers, (G) to consent to any operation or action under a
Mortgage Loan that is contemplated or permitted under a Mortgage or other
documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes, any Serviced Companion Mortgage Loan and any B Note under
the terms of the Mortgage, including all rights of consent or approval
thereunder, subject to Sections 8.7 and 8.18 of this Agreement, (J) to enter
into lease subordination agreements, non-disturbance and attornment agreements
or other leasing or rental arrangements which may be requested by the Mortgagor
or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of
itself, the Trustee, the Trust (and, if applicable, the holders of the B Note
and Serviced Companion Mortgage Loan) or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (M) hold in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing
clauses (A) through (M) are referred to collectively as "Master Servicer Consent
Matters." Notwithstanding the above, the applicable Master Servicer shall have
no power to (i) waive any Prepayment Premiums or (ii) consent to any
modification of a Money Term of a Mortgage Loan. Nothing contained in this
Agreement shall limit the ability of the applicable Master Servicer to lend
money to (to the extent not secured, in whole or in part, by any Mortgaged
Property), accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though such Master Servicer was not a
party to this Agreement or to the transactions contemplated hereby; provided,
however, that this sentence shall not modify the Servicing Standard.
(b) The applicable Master Servicer shall not be obligated to service
and administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The applicable
Master Servicer shall be required to make all calculations and prepare all
reports required hereunder with respect to such Specially Serviced Mortgage
Loans (other than calculations and reports expressly required to be made by the
Special Servicer hereunder) as if no Servicing Transfer Event had occurred and
shall continue to collect all Scheduled Payments, make Servicing Advances as set
forth herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans, all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. The applicable
Master Servicer shall give notice within three Business Days to the Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by the Special Servicer
and such Master Servicer. The Special Servicer shall instruct, within one
Business Day after receiving such notice, the applicable Master Servicer on how
to apply such funds. The applicable Master Servicer within one Business Day
after receiving such instructions shall apply such funds in accordance with the
Special Servicer's
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instructions. Each Mortgage Loan that becomes a Specially Serviced Mortgage Loan
shall continue as such until such Mortgage Loan becomes a Rehabilitated Mortgage
Loan. The applicable Master Servicer shall not be required to initiate
extraordinary collection procedures or legal proceedings with respect to any
Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign each Power of Attorney attached hereto as Exhibit S-1 and Exhibit
S-1A. The applicable Master Servicer shall promptly notify the Trustee of the
execution and delivery of any document on behalf of the Trustee under such
Power-of-Attorney. From time to time until the termination of the Trust, upon
receipt of additional unexecuted powers of attorney from the applicable Master
Servicer or the Special Servicer, the Trustee shall execute and return to such
Master Servicer or the Special Servicer any additional powers of attorney and
other documents necessary or appropriate to enable such Master Servicer and the
Special Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. The applicable Master
Servicer shall indemnify the Trustee for any costs, liabilities and expenses
(including attorneys' fees) incurred by the Trustee in connection with the
intentional or negligent misuse of such power of attorney by such Master
Servicer. Notwithstanding anything contained herein to the contrary, neither the
applicable Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating such Master Servicer's or Special Servicer's,
as applicable, representative capacity, or (ii) knowingly take any action that
causes the Trustee to be registered to do business in any state, provided,
however, that the preceding clause (i) shall not apply to the initiation of
actions relating to a Mortgage Loan that such Master Servicer or the Special
Servicer, as the case may be, is servicing pursuant to its respective duties
herein (in which case such Master Servicer or the Special Servicer, as the case
may be, shall give three (3) Business Days prior notice to the Trustee of the
initiation of such action). The limitations of the preceding clause shall not be
construed to limit any duty or obligation imposed on the Trustee under any other
provision of this Agreement.
(d) The applicable Master Servicer shall make efforts consistent with
the Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The applicable Master Servicer shall segregate and hold all funds
collected and received pursuant to any Mortgage Loan (other than any
Non-Serviced Mortgage Loan) constituting Escrow Amounts separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more segregated custodial accounts (each, an "Escrow Account") into which all
Escrow Amounts shall be deposited within one (1) Business Day after receipt.
Each Escrow Account shall be an Eligible Account, except with respect to
Mortgage Loans identified on Schedule VI for which Escrow Accounts shall be
transferred to Eligible Accounts at the earliest date permitted under the
related Mortgage Loan documents. The applicable Master Servicer shall also
deposit into each Escrow Account any amounts representing losses on Eligible
Investments pursuant to the immediately succeeding paragraph and any Insurance
Proceeds or Liquidation Proceeds which are required to be applied to the
restoration or repair of any Mortgaged Property pursuant to the related Mortgage
Loan. Each Escrow Account
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shall be maintained in accordance with the requirements of the related Mortgage
Loan and in accordance with the Servicing Standard. Withdrawals from an Escrow
Account may be made only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to a Certificate Account (or any
sub-account thereof) to reimburse the applicable Master Servicer for any Advance
(or the Trust for any Unliquidated Advance) relating to Escrow Amounts, but only
from amounts received with respect to the related Mortgage Loan which represent
late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the applicable Master
Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were
not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the applicable
Master Servicer may direct any depository institution or trust company in which
the Escrow Accounts are maintained to invest the funds held therein in one or
more Eligible Investments; provided, however, that such funds shall be either
(x) immediately available or (y) available in accordance with a schedule which
will permit such Master Servicer to meet the payment obligations for which the
Escrow Account was established; (ii) such Master Servicer shall be entitled to
all income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) such Master Servicer shall deposit from its
own funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss, provided that such investment loss shall not include any loss with respect
to such investment which is incurred solely as a result of the insolvency of the
federal or state chartered depositary institution or trust company at which such
Escrow Account is maintained, so long as such depositary institution or trust
company (a) satisfied the qualifications set forth in the definition of
"Eligible Account" both at the time such investment was made and as of a date
not more than 30 days prior to the date of such loss and (b) is not the same
Person as the Person that made the relevant investment. The applicable Master
Servicer shall not direct the investment of funds held in any Escrow Account and
retain the income and gain realized therefrom if the terms of the related
Mortgage Loan or applicable law permit the Mortgagor to be entitled to the
income and gain realized from the investment of funds
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deposited therein, and such Master Servicer shall not be required to invest
amounts on deposit in Escrow Accounts in Eligible Investments or Eligible
Accounts to the extent that such Master Servicer is required by either law or
under the terms of any related Mortgage Loan to deposit or invest (or the
Mortgagor is entitled to direct the deposit or investment of) such amounts in
another type of investments or accounts. In the event the applicable Master
Servicer is not entitled to direct the investment of such funds, (1) such Master
Servicer shall direct the depository institution or trust company in which such
Escrow Accounts are maintained to invest the funds held therein in accordance
with the Mortgagor's written investment instructions, if the terms of the
related Mortgage Loan or applicable law require such Master Servicer to invest
such funds in accordance with the Mortgagor's directions; and (2) in the absence
of appropriate written instructions from the Mortgagor, such Master Servicer
shall have no obligation to, but may be entitled to, direct the investment of
such funds; provided, however, that in either event (i) such funds shall be
either (y) immediately available or (z) available in accordance with a schedule
which will permit such Master Servicer to meet the payment obligations for which
the Escrow Account was established, and (ii) such Master Servicer shall have no
liability for any loss in investments of such funds that are invested pursuant
to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicers and the Special
Servicer to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
applicable Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by such Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The applicable Master Servicer
shall apply the funds deposited in such accounts in accordance with terms of the
related Mortgage Loan documents, any Lock-Box Agreement and in accordance with
the Servicing Standard.
(h) The applicable Master Servicer shall process all defeasances of
Mortgage Loans in accordance with the terms of the Mortgage Loan documents, and
shall be entitled to any fees paid relating thereto. Subject to the terms of the
related Mortgage Loan documents, the applicable Master Servicer shall not permit
defeasance (or partial defeasance if permitted under the Mortgage Loan) of any
Mortgage Loan on or before the second anniversary of the Closing Date unless
such defeasance will not result in an Adverse REMIC Event and such Master
Servicer has received an opinion of counsel to such effect and all items in the
following sentence have been satisfied. Subsequent to the second anniversary of
the Closing Date, the applicable Master Servicer, in connection with the
defeasance of a Mortgage Loan shall require (to the extent it is not
inconsistent with the Servicing Standard) that: (i) the collateral consists of
Defeasance Collateral, (ii) such Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event, (iii) either (A) the
related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral (subject to customary qualifications)
or (B) such Master Servicer has established a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, (iv) such Master
Servicer has requested
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and received from the Mortgagor (A) an opinion of counsel that the Trustee will
have a perfected, first priority security interest in such Defeasance Collateral
and (B) written confirmation from a firm of independent accountants stating that
payments made on such Defeasance Collateral in accordance with the terms thereof
will be sufficient to pay the subject Mortgage Loan (or the defeased portion
thereof in connection with a partial defeasance) in full on or before its
Maturity Date (or, in the case of any ARD Loans, on or before the applicable
Anticipated Repayment Date) and to timely pay each subsequent Scheduled Payment,
(v) (A) a Rating Agency Confirmation is received if the Mortgage Loan (together
with any other Mortgage Loan with which it is cross-collateralized) has a
Principal Balance greater than the lesser of $20,000,000 and 5% of the Aggregate
Certificate Balance, unless each Rating Agency has waived (which waiver must be
in writing in the case of S&P) such Rating Agency Confirmation requirement or
(B) if the Mortgage Loan is less than or equal to both of the amounts set forth
in clause (A) and the successor Mortgagor with respect to the subject Mortgage
Loan and its affiliates collectively have assumed Mortgage Loans comprising an
aggregate principal amount at least equal to the lesser of $20,000,000 and 5% of
the Aggregate Certificate Balance, either a Notice and Certification in the form
attached hereto as Exhibit Z is delivered to the Rating Agencies or a Rating
Agency Confirmation is received from Fitch and S&P and (vi) a Rating Agency
Confirmation from Fitch and S&P is received if the Mortgage Loan is one of the
ten largest Mortgage Loans, by Principal Balance. Any customary and reasonable
out-of-pocket expense incurred by the applicable Master Servicer pursuant to
this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan
pursuant to the related Mortgage, Mortgage Note or other pertinent document, if
so allowed by the terms of such documents.
The parties hereto acknowledge that if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses associated
with a defeasance of the related Mortgage Loan are insufficient to reimburse the
Trust, including, but not limited to, rating agency fees, then the sole
obligation of the related Seller shall be to pay an amount equal to such
insufficiency or expense to the extent the related Mortgagor is not required to
pay such amount. Promptly upon receipt of notice of such insufficiency or unpaid
expense, the applicable Master Servicer shall make demand upon the related
Seller to make such payment by deposit to a Certificate Account. The applicable
Master Servicer shall use reasonable efforts to enforce the rights of the Trust
with respect to the related Seller's obligation to pay such amounts and in the
event the related Seller fails to make such payment, such amount shall be an
expense of the Trust, provided, however, that the foregoing is not intended to
relieve the Seller of its obligations nor such Master Servicer of its obligation
nor limit the rights that any person(s) may otherwise have to enforce such
rights.
In the case of a Specially Serviced Mortgage Loan, the applicable
Master Servicer shall process any defeasance of such Specially Serviced Mortgage
Loan in accordance with the original terms of the respective Mortgage Loan
documents following a request by the Special Servicer that such Master Servicer
do so, which request shall be accompanied by a waiver of any condition of
defeasance that an "event of default" under such Specially Serviced Mortgage
Loan not have occurred or be continuing, and such Master Servicer shall be
entitled to any fees paid relating to such defeasance. If such "event of
default" is on account of an uncured payment default, the Special Servicer will
process the defeasance of such Specially Serviced Mortgage Loan, and the Special
Servicer shall be entitled to any fees paid relating to such defeasance.
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(i) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
confirm whether or not on or prior to the date that is forty-five (45) days
after the Closing Date, the applicable Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to such Master Servicer (as
evidenced by delivery of a copy thereof to such Master Servicer). The applicable
Master Servicer shall promptly notify the ground lessor if the applicable Seller
has failed to do so by the thirtieth day after the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the owner of any
B Note has agreed that the applicable Master Servicer and the Special Servicer
are authorized and obligated to service and administer the B Note pursuant to
this Agreement. The applicable Master Servicer shall be entitled, during any
period when the A Note and B Note under any A/B Mortgage Loan do not constitute
Specially Serviced Mortgage Loans, to exercise the rights and powers granted
under the related Intercreditor Agreement to the "Note A Holder" and/or the
"Servicer" referred to therein. For the avoidance of doubt, the parties
acknowledge that neither the applicable Master Servicer nor the Special Servicer
shall be entitled or required to exercise the rights and powers granted to any
"Note B Holder" as defined under the related Intercreditor Agreement.
(k) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owner of any Non-Serviced Mortgage Loan has agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer, and the applicable Non-Serviced Mortgage Loan Master Servicer
and the applicable Non-Serviced Mortgage Loan Special Servicer are authorized
and obligated to service and administer such Non-Serviced Mortgage Loan pursuant
to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the applicable Master Servicer's obligations and responsibilities
hereunder and such Master Servicer's authority with respect to any Non-Serviced
Mortgage Loan are limited by and subject to the terms of the related
Non-Serviced Mortgage Loan Intercreditor Agreement and the rights of the
applicable Non-Serviced Mortgage Loan Master Servicer and the applicable
Non-Serviced Mortgage Loan Special Servicer with respect thereto under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The
applicable Master Servicer shall enforce the rights of the Trustee (as holder of
the Non-Serviced Mortgage Loans) under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan
Intercreditor Agreement. The applicable Master Servicer shall take such actions
as it shall deem reasonably necessary to facilitate the servicing of any
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the applicable Non-Serviced Mortgage Loan Master
Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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(l) Pursuant to each Loan Pair Intercreditor Agreement, the owner of
the related Serviced Companion Mortgage Loan has agreed that the applicable
Master Servicer and the Special Servicer are authorized and obligated to service
and administer the Serviced Companion Mortgage Loan pursuant to this Agreement.
The applicable Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent are, to the extent applicable, authorized and directed to execute and
deliver to the owner or owners of the Serviced Companion Mortgage Loan a letter
agreement requested by the owner of the Serviced Companion Mortgage Loan, dated
as of the Closing Date, and setting forth provisions as to, among other things,
the timing of remittances, advances and reports relating to the Serviced
Companion Mortgage Loan, and references herein to the related Loan Pair
Intercreditor Agreement shall be construed to refer to such Loan Pair
Intercreditor Agreement and such letter agreement taken together, as applicable.
To the extent that the applicable Master Servicer, the Special Servicer, the
Trustee and/or the Fiscal Agent have duties and obligations under any such
letter agreement, each successor master servicer, successor special servicer,
successor trustee and/or successor fiscal agent, respectively, under this
Agreement shall perform such duties and satisfy such obligations.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The applicable Master Servicer shall supervise, administer,
monitor, enforce and oversee the servicing of the applicable Mortgage Loans by
any Sub-Servicer appointed by it. The terms of any arrangement or agreement
between the applicable Master Servicer and a Sub-Servicer shall provide that
such agreement or arrangement may be terminated, without cause and without the
payment of any termination fees, by the Trustee in the event such Master
Servicer is terminated in accordance with this Agreement. In addition, none of
the Trustee, the Certificateholders, the holder of any Serviced Companion
Mortgage Loan or the holder of any B Note shall have any direct obligation or
liability (including, without limitation, indemnification obligations) with
respect to any Sub-Servicer. The applicable Master Servicer shall pay the costs
of enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any primary servicing agreement or
sub-servicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the applicable Master Servicer or a
Sub-Servicer, or reference to actions taken through a Sub-Servicer or otherwise,
such Master Servicer shall remain obligated and liable to the Trustee, the
Special Servicer and the Certificateholders for the servicing and administering
of the applicable Mortgage Loans, the B Notes and the Serviced Companion
Mortgage Loans in accordance with (and subject to the limitations contained
within) the provisions of this Agreement without diminution of such obligation
or liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if such Master Servicer alone
were servicing and administering the Mortgage Loans.
Notwithstanding anything to the contrary contained herein, it shall be
permissible for a sub-servicing agreement entered into with any sub-servicer
dated on or prior to the Closing Date to prohibit a termination of the related
sub-servicer without cause provided that such sub-servicing agreement provides
for termination for cause under events that are defined to include (among
others) an uncured failure to remit or deposit funds and a material failure to
comply with
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covenants (although notice and grace periods may apply). Any such right of such
a designated sub-servicer under the related sub-servicing agreement shall be
binding upon any successor Master Servicer (including the Trustee) which
successor Master Servicer shall assume such sub-servicing agreement.
(b) Subject to the limitations of subsection (a), a Master Servicer
may appoint one or more sub-servicers (each, a "Sub-Servicer") to perform all or
any portion of its duties hereunder for the benefit of the Trustee and the
Certificateholders.
(c) The Servicer Report Administrator shall not be entitled to appoint
a Sub-Servicer to perform all or any portion of its duties hereunder in its
capacity as Servicer Report Administrator.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. A Master Servicer and any
agent of such Master Servicer in its individual or any other capacity may become
the owner or pledgee of Certificates with the same rights it would have if it
were not a Master Servicer or such agent. Any such interest of a Master Servicer
or such agent in the Certificates shall not be taken into account when
evaluating whether actions of such Master Servicer are consistent with its
obligations in accordance with the Servicing Standard regardless of whether such
actions may have the effect of benefiting the Class or Classes of Certificates
owned by such Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES
AND OTHER. Subject to the limitations set forth below, the applicable Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Mortgagor to maintain for each Mortgage Loan (other than any
REO Mortgage Loan) (A) a Standard Hazard Insurance Policy (that, if the terms of
the related Mortgage Loan documents and the related Mortgage so require or so
permit the holder of the Mortgage Loan to require, contains no exclusion for
damages due to any "act of terrorism," as defined in the Terrorism Risk
Insurance Act of 2002) and which does not provide for reduction due to
depreciation in an amount that is at least equal to the lesser of (i) the full
replacement cost of improvements securing such Mortgage Loan or (ii) the
outstanding Principal Balance of such Mortgage Loan and any related B Note or
Serviced Companion Mortgage Loan, but, in any event, in an amount sufficient to
avoid the application of any co-insurance clause and (B) any other insurance
coverage for a Mortgage Loan which the related Mortgagor is required to maintain
under the related Mortgage, provided such Master Servicer shall not be required
to maintain earthquake insurance on any Mortgaged Property unless such insurance
was required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property (other
than with respect to a Non-Serviced Mortgage Loan) so long as such insurance is
available at commercially reasonable rates. If the related Mortgagor does not
maintain the insurance set forth in clauses (A) and (B) above, then the
applicable Master Servicer shall cause to be maintained such insurance with a
Qualified Insurer. The applicable Master Servicer shall be deemed to have
satisfied its obligations with respect to clause (A) above if the Mortgagor
maintains, or (subject to the provisions set forth below) such Master Servicer
shall have otherwise caused to be obtained, a Standard Hazard Insurance Policy
that is in compliance with the related Mortgage Loan documents, and, if required
by such Mortgage Loan documents or if such Mortgage Loan
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documents permit the holder of the Mortgage Loan to require, the Mortgagor pays,
or such Master Servicer shall have otherwise caused to be paid, the premium
required by the related insurance provider that is necessary to avoid an
exclusion in such policy against any "act of terrorism" as defined by the
Terrorism Risk Insurance Act of 2002.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the applicable Master Servicer (with respect to any
Mortgaged Property that is not an REO Property) shall cause flood insurance to
be maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the applicable Master Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in a Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the
applicable Master Servicer in maintaining any insurance pursuant to this Section
8.6 shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
the applicable Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the applicable Master Servicer shall have
no obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the applicable
Master Servicer shall not be required in any event to obtain such insurance
coverage to the extent that the Trustee, as mortgagee, has no insurable
interest, or to cause the Mortgagor to maintain or itself obtain insurance
coverage beyond what is available on commercially reasonable terms at a cost
customarily acceptable (in each case, as determined by such Master Servicer,
which shall be entitled to rely, at its sole expense, on insurance consultants
in making such determination, consistent with the Servicing Standard) and
consistent with the Servicing Standard; provided, that such Master Servicer
shall be obligated to cause the Mortgagor to maintain or itself obtain insurance
against property damage resulting from terrorism or similar acts if the terms of
the related Mortgage Loan documents and the related Mortgage so require unless
such Master Servicer determines that (i) such insurance is not available at any
rate or (ii) such insurance is not available at commercially reasonable rates
and such hazards are not at the time commonly insured against for properties
similar to the related Mortgaged Property and located in or around the region in
which such related Mortgaged Property is located; provided, that such
determination must be made by such Master Servicer not less frequently (but need
not be made more frequently) than annually, but in
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any event, shall be made on the approximate date on (but not later than sixty
(60) days thereafter) which such Master Servicer receives notice of the renewal,
replacement or cancellation of coverage (as evidenced by the related insurance
policy or insurance certificate). Notwithstanding the limitation set forth in
the preceding sentence, if the related Mortgage Loan documents and the related
Mortgage require the Mortgagor to maintain insurance against property damage
resulting from terrorism or similar acts, the applicable Master Servicer shall
prior to availing itself of any limitation described in clause (i) or (ii) of
such sentence with respect to any Mortgage Loan, obtain the approval or
disapproval of the Operating Adviser (subject to the penultimate paragraph of
Section 9.39) other than in the case of an A/B Mortgage Loan as to which the
related holder of the related B Note is the directing or controlling noteholder
under the related Intercreditor Agreement, or, solely with respect to the A/B
Mortgage Loan, of the related holder of the B Note (but only so long as the
holder of such B Note is the directing or controlling holder as defined in the
related Intercreditor Agreement), unless such consent or deemed consent of such
B Noteholder is not required pursuant to the operation of provisions of the
related Intercreditor Agreement that (but for their applicability to consents of
the B Noteholder) are similar to the provisions of the penultimate paragraph of
Section 9.39. The applicable Master Servicer shall be entitled to conclusively
rely on the determination of the Operating Adviser (or a B Note holder, as
applicable) made in connection with such approval or disapproval (subject to
operation of the Servicing Standard and the penultimate paragraph of Section
9.39). If any such approval has not been expressly denied within seven (7)
Business Days of receipt by the Operating Adviser from the applicable Master
Servicer of such Master Servicer's determination and analysis and all
information reasonably requested by the Operating Adviser and reasonably
available to such Master Servicer in order to make an informed decision, such
approval shall be deemed to have been granted. The applicable Master Servicer
shall notify the holder of the related Serviced Companion Mortgage Loan of any
determination that it makes pursuant to clauses (i) and (ii) above with respect
to any Serviced Pari Passu Mortgage Loan.
A Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if such Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note serviced by it, it being
understood and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided that
such policy is issued by a Qualified Insurer or (ii) if such Master Servicer,
provided that its long-term rating is not less than "A" by Fitch, "A-" by S&P
and "A(low)" by DBRS (or, if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations), self-insures for its obligations. In the
event that a Master Servicer shall cause any Mortgage Loan to be covered by such
a master force placed or blanket insurance policy, the incremental cost of such
insurance allocable to such Mortgage Loan (i.e., other than any minimum or
standby premium payable for such policy whether or not any Mortgage Loan is then
covered thereby), if not borne by the related Mortgagor, shall be paid by such
Master Servicer as a Servicing Advance. If such policy contains a deductible
clause, the applicable Master Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 8.6 and there shall have been a loss that would have been covered by
such policy, deposit in the applicable Certificate Account the
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amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note, the
applicable Master Servicer agrees to present, on its behalf and on behalf of the
Trustee and the holders of any Serviced Companion Mortgage Loan or any B Note,
claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the applicable Master Servicer
shall maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the applicable Master
Servicer (other than with respect to REO Mortgage Loans) shall (i) obtain all
bills for the payment of such items (including renewal premiums), and (ii)
except in the case of Mortgage Loans under which Escrow Amounts are not held by
such Master Servicer, effect payment of all such bills, taxes and other
assessments with respect to such Mortgaged Properties prior to the applicable
penalty or termination date, in each case employing for such purpose Escrow
Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the applicable Master Servicer in accordance with the
Servicing Standard shall use its reasonable efforts to pay as a Servicing
Advance the amount necessary to effect the payment of any such item prior to
such penalty or termination date, subject to Section 4.4 hereof. No costs
incurred by the applicable Master Servicer, the Trustee or the Fiscal Agent, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding Principal
Balances of such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the applicable Master Servicer receives a request
from a Mortgagor (or other obligor) pursuant to the provisions of any Mortgage
Loan, Serviced Companion Mortgage Loan or B Note (other than a Specially
Serviced Mortgage Loan or a Non-Serviced Mortgage Loan) that expressly permits,
subject to any conditions set forth in the Mortgage Loan documents, the
assignment of the related Mortgaged Property to, and assumption of such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note by, another Person, such Master
Servicer shall obtain relevant information for purposes of evaluating such
request. For the purpose of the foregoing sentence, the term 'expressly permits'
shall include outright permission to assign, permission to assign upon
satisfaction of certain conditions or prohibition against assignment except upon
Lender consent or the satisfaction of stated conditions. If the applicable
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Master Servicer recommends to approve such assignment, such Master Servicer
shall provide to the Special Servicer (and solely with respect to any A/B
Mortgage Loan, the holder of the B Note) a copy of such recommendation and the
materials upon which such recommendation is based (which information shall
consist of the information to be included in the Assignment and Assumption
Submission to Special Servicer, in the form attached hereto as Exhibit U-1, in
the case of the Xxxxx Fargo Master Servicer, and in the form attached hereto as
Exhibit U-2, in the case of the PAR Master Servicer) and (A) subject to consent
or deemed consent of the Operating Adviser (unless not required pursuant to the
operation of the penultimate paragraph of Section 9.39), other than in the case
of an A/B Mortgage Loan as to which the related holder of the related B Note is
the directing or controlling noteholder under the related Intercreditor
Agreement, or, with respect to the A/B Mortgage Loan the consent of the related
B Note holder (but only so long as the holder of such B Note is the directing or
controlling holder as defined in the related Intercreditor Agreement), unless
such consent or deemed consent of such B Noteholder is not required pursuant to
the operation of provisions of the related Intercreditor Agreement that (but for
their applicability to consents of the B Noteholder) are similar to the
provisions of the penultimate paragraph of Section 9.39, the Special Servicer
shall have the right hereunder to grant or withhold consent to any such request
for such assignment and assumption in accordance with the terms of the Mortgage
Loan, Serviced Companion Mortgage Loan or B Note and this Agreement, and any
such decision of the Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify such Master Servicer in
writing, within fifteen (15) Business Days (or in the case of the A/B Mortgage
Loan, within thirty-five (35) Business Days) following such Master Servicer's
delivery of the recommendation described above and the complete Assignment and
Assumption Submission to the Special Servicer on which the recommendation is
based, of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) such Master Servicer shall not permit
any such assignment or assumption unless it has received the written consent of
the Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence. Upon consent or deemed consent by the
Special Servicer to such proposed assignment and assumption, the applicable
Master Servicer shall process such request of the related Mortgagor (or other
obligor) and shall be authorized to enter into an assignment and assumption or
substitution agreement with the Person to whom the related Mortgaged Property
has been or is proposed to be conveyed, and/or release the original Mortgagor
from liability under the related Mortgage Loan, Serviced Companion Mortgage Loan
or B Note and substitute as obligor thereunder the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed; provided, however,
that such Master Servicer shall not enter into any such agreement to the extent
that any terms thereof would result in an Adverse REMIC Event or create any lien
on a Mortgaged Property that is senior to, or on parity with, the lien of the
related Mortgage. To the extent permitted by applicable law, the applicable
Master Servicer shall not enter into such an assumption or substitution
agreement unless the credit status of the prospective new Mortgagor (or other
obligor) is in conformity to the terms of the related Mortgage Loan and, if
applicable, B Note or Serviced Companion Loan documents, provided, however, that
nothing in this sentence shall impose upon any such Master Servicer a different
or higher standard of servicing than the Servicing Standard. The applicable
Master Servicer shall notify the Trustee, the Paying Agent and the Special
Servicer of any assignment and assumption or substitution agreement executed
pursuant to this Section 8.7(a). The applicable Master Servicer shall be
entitled to (as additional servicing compensation) 50% of any assumption fee
collected from a Mortgagor in connection
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with an assignment and assumption or substitution of a non-Specially Serviced
Mortgage Loan executed pursuant to this Section 8.7(a) and the Special Servicer
shall be entitled to (as additional special servicing compensation) the other
50% of such fee.
Neither of the Master Servicers nor the Special Servicer shall have
any liability, and each of them shall be indemnified by the Trust for any
liability to the Mortgagor or the proposed assignee, for any delay in responding
to requests for assumption, if the same shall occur as a result of the failure
of the Rating Agencies or the Operating Adviser, or any of them, to respond to
such request in a reasonable period of time.
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan or a Non-Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms (i) provides that such
Mortgage Loan shall (or may at the mortgagee's option) become due and payable
upon the sale or other transfer of an interest in the related Mortgaged Property
or ownership interest in the related Mortgagor, or (ii) provides that such
Mortgage Loan may not be assumed, or ownership interests in the related
Mortgagor may not be transferred, without the consent of the related mortgagee
in connection with any such sale or other transfer, then, the applicable Master
Servicer shall review and make a determination to either (i) enforce such
due-on-sale clause or (ii) if in the best economic interest of the Trust, waive
the effect of such provision, such waiver to be processed in the same manner as
in Section 8.7(a) (including the Special Servicer consent provisions); provided,
however, that if the Principal Balance of such Mortgage Loan (together with any
other Mortgage Loan with which it is cross-collateralized) at such time equals
or exceeds 5% of the Aggregate Certificate Balance or exceeds $35,000,000 or is
one of the then current top 10 loans (by Principal Balance) in the pool, then
prior to waiving the effect of such provision, such Master Servicer shall obtain
Rating Agency Confirmation (including with respect to any securities which are
rated by a Rating Agency evidencing direct beneficial interests in the A Notes
and any B Note) regarding such waiver. In connection with the request for such
Rating Agency Confirmation, the applicable Master Servicer shall prepare and
deliver to Fitch, S&P and DBRS a memorandum outlining its analysis and
recommendation in accordance with the Servicing Standard, together with copies
of all relevant documentation. The applicable Master Servicer shall promptly
forward copies of the assignment and assumption documents relating to any
Mortgage Loan to the Special Servicer, the Paying Agent and the Trustee, and
such Master Servicer shall promptly thereafter forward such documents to the
Rating Agencies. The Special Servicer and the applicable Master Servicer shall
each be entitled to (as additional compensation) 50% of any fee collected from a
Mortgagor in connection with granting or withholding such consent (other than
any such fee payable in connection with any Non-Serviced Mortgage Loan).
(c) The Trustee for the benefit of the Certificateholders, the holder
of any Serviced Companion Mortgage Loan and the holder of any B Note shall
execute any necessary instruments in the form presented to it by the applicable
Master Servicer (pursuant to subsection (a)) or the Special Servicer (pursuant
to subsection (b)) for such assignments and assumptions agreements. Upon the
closing of the transactions contemplated by such documents, the applicable
Master Servicer or the Special Servicer, as the case may be, shall cause the
originals of the assignment and assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Loan to be delivered to the
Trustee except to the extent such documents have been
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submitted to the recording office, in which event such Master Servicer shall
promptly deliver copies of such documents to the Trustee and the Special
Servicer.
(d) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan or a Non-Serviced Mortgage Loan) which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property
or a lien on an ownership interest in the Mortgagor,
then, as long as such Mortgage Loan is included in the Trust, the applicable
Master Servicer, on behalf of the Trustee as the Mortgagee of record, shall
exercise, subject to the Special Servicer's consent or deemed consent (it being
acknowledged that the Special Servicer may be required to obtain the consent or
deemed consent of the Operating Adviser, subject to the penultimate paragraph of
Section 9.39), (or, subject to Section 8.18, waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard, the following paragraph and Section 8.18 hereof. The applicable Master
Servicer shall not waive the effect of such provision without first obtaining
Rating Agency Confirmation (including with respect to any securities which are
rated by a Rating Agency evidencing direct beneficial interests in the A Notes
and any B Note) regarding such waiver and complying with the provisions of the
next succeeding paragraph; provided, however, that such Rating Agency
Confirmation shall only be required if the applicable Mortgage Loan (x)
represents 2% or more of the Principal Balance of all of the Mortgage Loans held
by the Trust, has a Principal Balance of more than $20,000,000 or is one of the
10 largest Mortgage Loans based on Principal Balance or (y) has a Loan-to-Value
Ratio (which includes the indebtedness to be secured by such additional lien or
other encumbrance and any other loans secured by the related Mortgaged Property
or interests in the related Mortgagor) that is greater than or equal to 85% or a
Debt Service Coverage Ratio (which includes debt service on the indebtedness to
be secured by such additional lien or other encumbrance and any other loans
secured by the related Mortgaged Property or interests in the related Mortgagor)
that is less than 1.2x.
Without limiting the generality of the preceding paragraph, in the
event that the applicable Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, such Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the
applicable Master Servicer recommends to waive such clause, such Master Servicer
shall provide to the Special Servicer a copy of such recommendation and the
materials upon which such recommendation is based (which information shall
consist of the information to be included in the Additional Lien, Monetary
Encumbrance and Mezzanine Financing Submission Package to the Special Servicer,
in the form attached hereto as Exhibit V, in the case of the Xxxxx Fargo Master
Servicer and Exhibit U-2, in the case of the PAR Master Servicer) and
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(A) subject to the Operating Adviser's consent (and the penultimate paragraph of
Section 9.39), the Special Servicer shall have the right hereunder to grant or
withhold consent to any such request in accordance with the terms of the
Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify such Master Servicer in writing, within fifteen (15) Business
Days following such Master Servicer's delivery of the recommendation described
above and the complete Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer on which the recommendation
is based, of its determination to grant or withhold such consent shall be deemed
to constitute a grant of such consent and (C) such Master Servicer shall not
permit any such waiver unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as described in
the preceding sentence. If the Special Servicer withholds consent pursuant to
the foregoing provisions, it shall provide the applicable Master Servicer with a
written statement and a verbal explanation as to its reasoning and analysis.
Upon consent or deemed consent by the Special Servicer to such proposed waiver,
the applicable Master Servicer shall process such request of the related
Mortgagor subject to the other requirements set forth above.
The parties hereto acknowledge that, if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses of obtaining
any Rating Agency Confirmation in connection with an assumption of the related
Mortgage Loan are insufficient to reimburse the Trust, then it shall be the sole
obligation of the related Seller to pay an amount equal to such insufficiency to
the extent the related Mortgagor is not required to pay them. Promptly upon
receipt of notice of such insufficiency, the applicable Master Servicer or the
Special Servicer, as applicable, shall request the applicable Seller to make
such payment by deposit to the applicable Certificate Account. The applicable
Master Servicer may not waive such payment by the Mortgagor and shall use its
reasonable efforts to collect such amounts from the Mortgagor to the extent the
related mortgage loan documents require the related Mortgagor to pay such
amounts.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, the complete defeasance of a
Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan, the purchase of an A Note by the holder of a B Note pursuant to
the related Intercreditor Agreement, or the receipt by the applicable Master
Servicer of a notification that payment in full (or such payment, if any, in
connection with the satisfaction and discharge in full of any Specially Serviced
Mortgage Loan) will be escrowed in a manner customary for such purposes, and
upon notification by such Master Servicer in the form of a certification (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the applicable Certificate Account have been or will be so
deposited) of a Servicing Officer and a request for release of the Trustee
Mortgage File in the form of Exhibit C hereto the Trustee shall promptly release
the related Trustee Mortgage File to such Master Servicer and the Trustee shall
execute and deliver to such Master Servicer the deed of reconveyance or release,
satisfaction or assignment of mortgage or such instrument releasing the lien of
the Mortgage, as directed by such Master Servicer together with the Mortgage
Note with written evidence of cancellation thereon and, if the related Mortgage
has been recorded in the name of MERS or its designee, such Master Servicer
shall, at the expense of the related Seller (if
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not paid by the Mortgagor), which Seller shall pay such expense upon demand
therefor by such Master Servicer, take all necessary action to reflect the
release of such Mortgage on the records of MERS. The provisions of the
immediately preceding sentence shall not, in any manner, limit or impair the
right of the applicable Master Servicer to execute and deliver, on behalf of the
Trustee, the Certificateholders, the holder of any Serviced Companion Mortgage
Loan, the holder of any B Note or any of them, any and all instruments of
satisfaction, cancellation or assignment without recourse, representation or
warranty, or of partial or full release or discharge and all other comparable
instruments, with respect to the Mortgage Loans, any Serviced Companion Mortgage
Loan or any B Note, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders, the holder of any Serviced Companion Mortgage
Loan and the holder of any B Note. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Distribution Account but shall be paid by the applicable Master Servicer except
to the extent that such expenses are paid by the related Mortgagor in a manner
consistent with the terms of the related Mortgage and applicable law. From time
to time and as shall be appropriate for the servicing of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
Servicer Fidelity Bond or Errors and Omissions Policy, or for the purposes of
effecting a partial or total release of any Mortgaged Property from the lien of
the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Trustee Mortgage File,
the Trustee shall, upon request of the applicable Master Servicer and the
delivery to the Trustee of a Request for Release signed by a Servicing Officer,
in the form of Exhibit C hereto, release the Trustee Mortgage File to such
Master Servicer or the Special Servicer, as the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, a Master
Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of such
Master Servicer from time to time and shall account fully to the Trustee and the
Paying Agent for any funds received or otherwise collected thereby, including
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Servicer Mortgage Files and funds collected or held by, or under the control of,
the applicable Master Servicer in respect of any Mortgage Loans (or any B Note
or Serviced Companion Mortgage Loan), whether from the collection of principal
and interest payments or from Liquidation Proceeds or Insurance Proceeds (and
other insurance proceeds payable to the B Note), including any funds on deposit
in the applicable Certificate Account (or any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial Account), shall be held by such
Master Servicer for and on behalf of the Trustee and the Certificateholders
(and/or the holder of any B Note or Serviced Companion Mortgage Loan, as
applicable) and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The applicable
Master Servicer agrees that it shall not create, incur or subject any Servicer
Mortgage Files or Trustee Mortgage File or any funds that are deposited in the
applicable Certificate Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance, or
assert by legal action or otherwise any claim or right of setoff against any
Servicer Mortgage Files or Trustee Mortgage File or any funds collected on, or
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in connection with, a Mortgage Loan, except, however, that such Master Servicer
shall be entitled to receive from any such funds any amounts that are properly
due and payable to such Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to the applicable Master Servicing Fee, which shall be payable
by the Trust from amounts held in the applicable Certificate Account (and from
the related A/B Loan Custodial Account to the extent related solely to a B Note
and from the related Serviced Companion Mortgage Loan Custodial Account to the
extent related solely to a Serviced Companion Mortgage Loan) or otherwise
collected from the Mortgage Loans as provided in Section 5.2. The applicable
Master Servicer shall be required to pay to the holders of the rights to the
Excess Servicing Fees, the Excess Servicing Fees, which shall be payable by the
Trust as provided in Section 5.1(c), unless otherwise retained by the holders of
such rights. Notwithstanding anything herein to the contrary, if any of the
holders of the right to receive Excess Servicing Fees resigns or is no longer a
Master Servicer, for any reason, it will continue to have the right to receive
its portion of the Excess Servicing Fee, and any of the holders of the right to
receive Excess Servicing Fees shall have the right to assign its portion of the
Excess Servicing Fee, whether or not it is then acting as a Master Servicer
hereunder.
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest (excluding default interest
allocable to any B Note pursuant to the terms of the related Intercreditor
Agreement) payable at a rate above the Mortgage Rate (net of any amount used to
pay Advance Interest), Modification Fees, forbearance fees, Late Fees (net of
Advance Interest) (excluding Late Fees allocable to any B Note if the holder of
the B Note has cured the related default pursuant to the terms of the related
Intercreditor Agreement) or other usual and customary charges and fees actually
received from Mortgagors shall be retained by the applicable Master Servicer,
provided that such Master Servicer shall be entitled to (i) receive 50% of
assumption fees collected on Mortgage Loans as provided in Sections 8.7(a) and
8.7(b), (ii) Modification Fees as provided in Section 8.18 hereof, and (iii)
100% of any extension fees collected from the related Mortgagor in connection
with the extension of the Maturity Date of any Mortgage Loan approved by such
Master Servicer as provided in Section 8.18, unless the consent of the Special
Servicer to such extension is also required under Section 8.18, in which case
such Master Servicer shall be entitled to only 50% of such extension fee and the
Special Servicer shall be entitled to the other 50%; provided, however, that
such Master Servicer shall not be entitled to any such fees in connection with
any Specially Serviced Mortgage Loans or any Non-Serviced Mortgage Loan.
Notwithstanding the foregoing, (i) the applicable Master Servicer shall be
entitled to only 50% of any Modification Fees collected with respect to a
consent, waiver, modification or amendment executed or granted by such Master
Servicer if the approval or consent of the Special Servicer was required in
connection therewith and the Special Servicer shall be entitled to the other 50%
and (ii) such Master Servicer shall not be entitled to any Modification Fee or
extension fee in connection with an extension of the maturity date of a Mortgage
Loan (that is not a Specially Serviced Mortgage Loan) approved by the Special
Servicer in accordance with the fifth sentence of Section 8.18(a)(ii). If a
Master Servicer collects any amount payable to the Special Servicer hereunder in
connection with an REO Mortgage Loan or Specially Serviced Mortgage Loan, such
Master Servicer shall promptly remit such amount to
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the Special Servicer as provided in Section 5.2. Each Master Servicer shall be
required to pay all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, with respect to any
Distribution Date, the Master Servicing Fee for the monthly period relating to
such Distribution Date (together with any investment income earned prior to such
Distribution Date on Principal Prepayments as to which Prepayment Interest
Shortfalls were incurred with respect to such Distribution Date) shall be
reduced by an amount equal to the Compensating Interest (if any) relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans for such
Determination Date.
(d) The applicable Master Servicer shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to Mortgage Loans which are
not Specially Serviced Mortgage Loans for each Distribution Date over the
aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
applicable Certificate Account and the Distribution Account (but only to the
extent of the net investment earnings, if any, with respect to each such
account), and, (iii) to the extent not required to be paid to any Mortgagor
under applicable law, any interest or other income earned on deposits in the
Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) each Master Servicer shall deliver
to the Paying Agent (or with respect to a Serviced Companion Mortgage Loan, to
the holder thereof or its servicer), no later than 1:00 p.m., New York City
time, on the related Report Date, the Master Servicer Remittance Report (which
shall include the Loan Periodic Update File and be accompanied by an Advance
Recovery Report) with respect to such Distribution Date including any
information regarding prepayments made pursuant to Section 5.2(b), relating to
the Mortgage Loans as to which it is the applicable Master Servicer (and
information delivered to such Master Servicer by the applicable Other Master
Servicer (if any) with respect to the Mortgage Loans as to which such Master
Servicer is the applicable Master Servicer (as described in the immediately
succeeding clause (ii)), without segregation according to the identities of the
Master Servicers and (ii) each Master Servicer shall report to the Paying Agent
and the Trustee on the related Advance Report Date, the amount of the P&I
Advance, if any, to be made by such Master Servicer on the related Master
Servicer Remittance Date. The Special Servicer is required to provide all
applicable information relating to Specially Serviced Mortgage Loans in order
for each Master Servicer to satisfy its duties in this Section 8.11.
(b) Each Master Servicer, upon request, shall deliver to the Trustee,
the Paying Agent and the Special Servicer within 45 days after a Distribution
Date a statement setting forth the status of its Certificate Account as of the
close of business as of the last day of the month for such Distribution Date
showing, for the period covered by such statement, the aggregate of deposits in
or withdrawals from such Certificate Account, and shall deliver to each holder
of a B Note and Serviced Companion Mortgage Loan within 30 days following each
Distribution Date a statement setting forth the status of the related A/B Loan
Custodial Account and Serviced Companion Mortgage Loan Custodial Account, as of
the close of business on such Distribution
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Date showing, for the period covered by such statement, the aggregate of
transfers in and transfers from or deposits in or withdrawals from such A/B Loan
Custodial Account or Serviced Companion Mortgage Loan Custodial Account, as
applicable.
(c) Each Master Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information concerning
its Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) Reserved
(e) The Servicer Report Administrator or the applicable Master
Servicer, as the case may be, shall deliver a copy of any reports or information
delivered to the Trustee or the Paying Agent pursuant to subsection (a) or
subsection (b) of this Section 8.11 to the Depositor, the Special Servicer, the
Operating Adviser and each Rating Agency, in each case upon request by such
Person and only to the extent such reports and information are not otherwise
required to be delivered to such Person under any provision of this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Servicer Report Administrator or the applicable Master Servicer, as the case
may be, shall not have any obligation (other than to the Special Servicer and,
to the extent provided in the last sentence of Section 8.14, the Operating
Adviser) to deliver any statement, notice or report that is then made available
on the a Master Servicer's or the Paying Agent's internet website, provided that
it has notified all parties entitled to delivery of such reports, by electronic
mail or other notice provided in this Agreement, to the effect that such
statements, notices or reports shall thereafter be made available on such
website from time to time.
(g) The Servicer Report Administrator shall deliver or cause to be
delivered to the Paying Agent, and the holder of any Serviced Companion Mortgage
Loan (in respect of such Serviced Companion Mortgage Loan) the following CMSA
Reports, combining information for the Mortgage Loans (and, if applicable, the
related REO Properties and, to the extent received from the applicable
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan) for
which it is the Master Servicer and the information delivered to the Servicer
Report Administrator by the Other Master Servicer with respect to the Mortgage
Loans (and, if applicable, the related REO Properties and, to the extent
received from the applicable Non-Serviced Mortgage Loan Master Servicer, any
Non-Serviced Mortgage Loan) for which such Other Master Servicer is the Master
Servicer, without segregation according to the identities of the Master
Servicers, providing the required information as of the related Determination
Date upon the following schedule: (i) a Comparative Financial Status Report and
the CMSA Financial File, commencing in October 2005 (no later than 1 Business
Day prior to the related Distribution Date); (ii) a CMSA Operating Statement
Analysis Report and an NOI Adjustment Worksheet in accordance with Section 8.14
of this Agreement, commencing in October 2005; (iii) a CMSA Watch List in
accordance with and subject to the terms of Section 8.11(h), commencing in
October 2005 (no later than 1 Business Day prior to the related Distribution
Date); (iv) a Loan Set-Up File (with respect to the initial Distribution Date
only) not later than the Report Date in September 2005; (v) [reserved]; (vi) a
Property File, commencing in October 2005 (no later than 1 Business Day prior to
the related Distribution Date); (vii) a Delinquent Loan Status Report,
commencing in October 2005 (no later than 1 Business Day prior to the related
Distribution
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Date); (viii) an Historical Loan Modification Report, commencing in October 2005
(no later than 1 Business Day prior to the related Distribution Date), (ix) an
Historical Liquidation Report, commencing in October 2005 (no later than 1
Business Day prior to the related Distribution Date); and (x) an REO Status
Report (no later than 1 Business Day prior to the related Distribution Date),
commencing in October 2005. Not later than 1:00 p.m., New York City time, on the
Business Day immediately preceding the date on which the Servicer Report
Administrator is required to deliver to the Paying Agent, and the holder of any
Serviced Companion Mortgage Loan (in respect of such Serviced Companion Mortgage
Loan), the relevant CMSA Report as identified in the schedule in the immediately
preceding sentence, the Master Servicer that is not the Servicer Report
Administrator shall prepare and deliver or cause to be delivered to the Servicer
Report Administrator a Comparative Financial Status Report and the CMSA
Financial File, a CMSA Operating Statement Analysis Report and an NOI Adjustment
Worksheet, a CMSA Watch List, a Loan Set-Up File, a Loan Periodic Update File, a
Property File, a Delinquent Loan Status Report, a Historical Loan Modification
Report, a Historical Liquidation Report, and an REO Status Report, combining
information for the Mortgage Loans (and, if applicable, the related REO
Properties and, to the extent received from the applicable Non-Serviced Mortgage
Loan Master Servicer, any Non-Serviced Mortgage Loan) for which such Master
Servicer is the Master Servicer. The information that pertains to Specially
Serviced Mortgage Loans and REO Properties reflected in such reports shall be
based solely upon the reports delivered by the Special Servicer to the
applicable Master Servicer in writing and on a computer readable medium
reasonably acceptable to such Master Servicer and the Special Servicer one (1)
Business Day after the Determination Date prior to the related Master Servicer
Remittance Date in the form required under Section 9.32. Each Master Servicer's
responsibilities under this Section 8.11(g) with respect to REO Mortgage Loans
and Specially Serviced Mortgage Loans shall be subject to the satisfaction of
the Special Servicer's obligations under Section 9.32. The reporting obligations
of the applicable Master Servicer in connection with any A/B Mortgage Loan shall
be construed to refer only to such information regarding the A/B Mortgage Loan
(and its related Mortgaged Property) and by reference to the related A Note
only, but whenever such Master Servicer remits funds to the holder of the
related B Note, it shall thereupon deliver to such holder a remittance report
identifying the amounts in such remittance. Notwithstanding anything herein to
the contrary, any report delivered to the Operating Adviser shall be delivered
to the holder of a B Note if it relates to the related A/B Mortgage Loan;
provided, however, for the sake of clarity, the holder of a B Note shall not be
entitled to the Special Servicer's (or other Person's, as applicable)
calculation of the Option Purchase Price for a Defaulted Mortgage Loan.
(h) For each Distribution Date, the Servicer Report Administrator
shall deliver to the Paying Agent (and solely with respect to any A/B Mortgage
Loan, the holder of the related B Note and solely with respect to any Loan Pair,
the holder of the related Serviced Companion Mortgage Loan), not later than 1
Business Day prior to the related Distribution Date, a CMSA Watch List,
combining information for the Mortgage Loans for which it is the Master Servicer
and the information delivered to the Servicer Report Administrator by the Other
Master Servicer with respect to the Mortgage Loans for which such Other Master
Servicer is the Master Servicer, without segregation according to the identities
of the Master Servicers. The Servicer Report Administrator shall list any
Mortgage Loan on the CMSA Watch List as to which any of the events specified in
the CMSA Watch List published by the CMSA for industry use has occurred. Not
later than 1:00 p.m., New York City time, on the Business Day immediately
preceding the related date on which the Servicer Report Administrator must
provide its report as set forth above,
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the Master Servicer that is not the Servicer Report Administrator shall prepare
and deliver or cause to be delivered to the Servicer Report Administrator a CMSA
Watch List which shall list any Mortgage Loan on the CMSA Watch List as to which
any of the events specified in the CMSA Watch List published by the CMSA for
industry use has occurred.
(i) If the applicable Master Servicer delivers a notice of drawing to
effect a drawing on any letter of credit or debt service reserve account under
which the Trust has rights as the holder of any Mortgage Loan for purposes other
than payment or reimbursement of amounts contemplated in and by a reserve or
escrow agreement (other than after a default under an applicable Mortgage Loan
or B Note), such Master Servicer shall, within five (5) Business Days following
its receipt of the proceeds of such drawing, deliver notice thereof to the
Special Servicer, the Operating Adviser, the holder of the related B Note, if
applicable, and the Paying Agent, which notice shall set forth (i) the unpaid
Principal Balance of such Mortgage Loan or B Note immediately before and
immediately after the drawing, and (ii) a brief description of the circumstances
that in such Master Servicer's good faith and reasonable judgment entitled such
Master Servicer to make such drawing.
(j) Each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent, as applicable, shall prepare and deliver (or make available on
their respective websites) to the Operating Adviser the reports and information
described in Exhibit BB (to the extent not otherwise delivered pursuant to this
Agreement) in the form and format and within the time frame set forth therein.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. Each Master Servicer
shall deliver to the Depositor, the Paying Agent, the Luxembourg Paying Agent
and the Trustee on or before March 15 of each year (or March 14 if a leap year),
commencing in March 2006, an Officer's Certificate stating, as to the signer
thereof, that (A) a review of the activities of such Master Servicer during the
preceding calendar year or portion thereof and of the performance of such Master
Servicer under this Agreement has been made under such officer's supervision and
(B) to the best of such officer's knowledge, based on such review, such Master
Servicer has fulfilled all its obligations under this Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. The applicable Master Servicer shall
forward a copy of each such statement to the Rating Agencies and the Operating
Adviser. Promptly after receipt of such Officer's Certificate, the Depositor
shall review the Officer's Certificate and, if applicable, consult with the
applicable Master Servicer as to the nature of any defaults by such Master
Servicer in the fulfillment of any of such Master Servicer's obligations
hereunder.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before noon (Eastern Time) on March 15 of each year (or March 14 if a leap
year), commencing in March 2006, each Master Servicer at its expense shall cause
a firm of nationally recognized independent public accountants (which may also
render other services to the applicable Master Servicer) and that is a member of
the American Institute of Certified Public Accountants to furnish a statement to
the Trustee, the Paying Agent, the Luxembourg Paying Agent and the Depositor,
with a copy to the Rating Agencies, to the effect that (i) it has obtained a
letter of representation regarding certain matters from the management of the
applicable Master
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Servicer, which includes an assertion that such Master Servicer has complied
with certain minimum mortgage loan servicing standards (to the extent applicable
to commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
commercial and multifamily mortgage loans by the Sub-Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to the Sub-Servicers. Promptly
after receipt of such report, the Depositor shall review the report and, if
applicable, consult with the applicable Master Servicer as to the nature of any
defaults by such Master Servicer in the fulfillment of any of such Master
Servicer's obligations hereunder.
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year) for the trailing or quarterly
information received, commencing in the quarter ending on September 30, 2005,
the applicable Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall deliver to the Paying Agent and the
Operating Adviser, and solely if it relates to any A/B Mortgage Loan, to the
holder of the related B Note (but only so long as the holder of such B Note is
the directing or controlling holder as defined in the related Intercreditor
Agreement), a CMSA Operating Statement Analysis Report and a CMSA Financial File
for each Mortgaged Property (in electronic format), prepared using the
non-normalized quarterly and normalized year-end operating statements and rent
rolls received from the related Mortgagor. Not later than the Report Date
occurring in June of each year, beginning in 2006 for year-end 2005, the
applicable Master Servicer (in the case of Mortgage Loans that are not Specially
Serviced Mortgage Loans) or the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall deliver to the Paying Agent and the Operating
Adviser a CMSA Operating Statement Analysis Report, a CMSA Financial File and an
NOI Adjustment Worksheet for each Mortgage Loan (in electronic format), based on
the most recently available year-end financial statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided to
such Master Servicer by or on behalf of each Mortgagor, or, in the case of
Specially Serviced Mortgaged Loans, as provided to the Special Servicer (by or
on behalf of each applicable Mortgagor), which Special Servicer shall forward
such information to such Master Servicer on or before May 31 of each such year),
containing such information and analyses for each Mortgage Loan provided for in
the respective forms of CMSA Operating Statement Analysis Report, CMSA Financial
File and an NOI Adjustment Worksheet as would customarily be included in
accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income, subject, in the case of any Non-Serviced
Mortgage Loan, to the receipt of such report from the applicable Non-Serviced
Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan
Special Servicer. The applicable Master Servicer shall make reasonable efforts,
consistent with the Servicing Standard, to obtain such reports from the
applicable Non-Serviced Mortgage Loan Master Servicer or the applicable
Non-
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Serviced Mortgage Loan Special Servicer. In addition, the applicable Master
Servicer shall deliver to the Operating Adviser, and solely if it relates to any
A/B Mortgage Loan, to the holder of the related B Note (but only so long as the
holder of such B Note is the directing or controlling holder as defined in the
related Intercreditor Agreement), and upon request such Master Servicer shall
make available to the Rating Agencies, the Special Servicer, the Paying Agent,
the Trustee and the holder of any Serviced Companion Mortgage Loan, within 30
days following receipt thereof by such Master Servicer, copies of any annual,
monthly or quarterly financial statements and rent rolls collected with respect
to the Mortgaged Properties. As and to the extent reasonably requested by the
Special Servicer, the applicable Master Servicer shall make inquiry of any
Mortgagor with respect to such information or as regards the performance of the
related Mortgaged Property in general. The Paying Agent shall provide or make
available electronically at no cost to the Certificateholders or Certificate
Owners, the Rating Agencies, the Operating Adviser, the Depositor, the Placement
Agents, the Underwriters, and solely as it relates to any A/B Mortgage Loan, to
the holder of the related B Note (but only so long as the holder of such B Note
is the directing or controlling holder as defined in the related Intercreditor
Agreement) and solely as it relates to any Loan Pair, to the holder of the
related Serviced Companion Mortgage Loan, the CMSA Operating Statement Analysis
Reports, CMSA Financial Files and NOI Adjustment Worksheets described above
pursuant to Section 5.4(a). The applicable Master Servicer shall electronically
deliver the CMSA Operating Statement Analysis Report, the operating statements,
rent rolls, property inspections and NOI Adjustment Worksheet for each Mortgage
Loan to the Operating Adviser.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICERS.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying Agent
shall make available at its Corporate Trust Office, during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, any Placement Agent, any
Underwriter, each Rating Agency, the Paying Agent or the Depositor (and the
holder of a B Note, if it relates to a B Note and the holder of a Serviced
Companion Mortgage Loan, if it relates to a Serviced Companion Mortgage Loan),
originals or copies of, among other things, the following items: (i) this
Agreement and any amendments thereto, (ii) all final and released CMSA Operating
Statement Analysis Reports and the Master Servicer Remittance Reports, (iii) all
Officer's Certificates (including Officer's Certificates evidencing any
determination of Nonrecoverable Advances) delivered to the Trustee and the
Paying Agent since the Closing Date, (iv) all accountants' reports delivered to
the Trustee and the Paying Agent since the Closing Date, (v) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicers and/or the Special Servicer and (vi) any and all
Officers' Certificates (and attachments thereto) delivered to the Trustee and
the Paying Agent to support the applicable Master Servicer's determination that
any Advance was not or, if made, would not be, recoverable. The Trustee and the
Paying Agent will be permitted to require payment of a sum to be paid by the
requesting party (other than the Rating Agencies, the Trustee, the Paying Agent,
any Placement Agent or any Underwriter) sufficient to cover the reasonable costs
and expenses of making such information available.
(b) Subject to the restrictions described below, the applicable Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the Special
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Servicer, the Sellers, the Placement Agents, the Underwriters, the Operating
Adviser, any Certificateholder, any holder of a Serviced Companion Mortgage
Loan, any holder of a B Note or any Certificate Owner, upon reasonable notice
and during normal business hours, reasonable access to all information referred
to in Section 8.15(a) and any additional relevant,
non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on such Master Servicer's or the Paying
Agent's internet website), and access to Servicing Officers of such Master
Servicer responsible for its obligations hereunder. Copies of information or
access will be provided to Certificateholders and each Certificate Owner
providing satisfactory evidence of ownership of Certificates or beneficial
ownership of a Certificate, as the case may be, which may include a
certification. Copies (or computer diskettes or other digital or electronic
copies of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items shall be made available by the applicable
Master Servicer upon request; provided, however, that such Master Servicer shall
be permitted to require payment by the requesting party (other than the
Depositor, the Trustee, the Paying Agent, the Special Servicer, the Operating
Adviser, any Placement Agent, any Underwriter, or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by such Master
Servicer of providing access or copies (including electronic or digital copies)
of any such information requested in accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require a Master Servicer or the
Servicer Report Administrator, as the case may be, to confirm, represent or
warrant the accuracy of (or to be liable or responsible for) any other Person's
information or report. Notwithstanding the above, neither a Master Servicer nor
the Servicer Report Administrator, as the case may be, shall have any liability
to the Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the Special
Servicer, any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced
Mortgage Loan Special Servicer, any Certificateholder, any Certificate Owner,
any holder of a Serviced Companion Mortgage Loan, any holder of a B Note, any
Placement Agent, any Underwriter, any Rating Agency or any other Person to whom
it delivers information pursuant to this Section 8.15 or any other provision of
this Agreement for federal, state or other applicable securities law violations
relating to the disclosure of such information. In the event any Person brings
any claims relating to or arising from the foregoing against a Master Servicer
or the Servicer Report Administrator, as the case may be, (or any employee,
attorney, officer, director or agent thereof), the Trust (from amounts held in
any account (including (x) with respect to any such claims relating to a
Serviced Companion Mortgage Loan, from amounts held in the related Serviced
Companion Mortgage Loan Custodial Account and (y) with respect to any such
claims relating to a B Note, from amounts held in the related A/B Loan Custodial
Account) or otherwise) shall hold harmless and indemnify such Master Servicer or
the Servicer Report Administrator, as the case may be, from any loss or expense
(including attorney fees) relating to or arising from such claims.
(d) The applicable Master Servicer or the Servicer Report
Administrator, as the case may be, shall produce the reports required of it
under this Agreement; provided, however, that such Master Servicer or the
Servicer Report Administrator, as the case may be, shall not be required to
produce any ad hoc non-standard written reports with respect to such Mortgage
Loans. In the event the applicable Master Servicer or the Servicer Report
Administrator, as the case may be, elects to provide such non-standard reports,
it may require the Person requesting such report
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(other than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to applicable Master Servicer or the Servicer Report Administrator, as
the case may be, making any report or information available upon request to any
Person other than the parties hereto, such Master Servicer or the Servicer
Report Administrator, as the case may be, may require that the recipient of such
information acknowledge that such Master Servicer or the Servicer Report
Administrator, as the case may be, may contemporaneously provide such
information to the Depositor, the Trustee, the Fiscal Agent, the Paying Agent,
the Special Servicer, the Sellers, any Placement Agent, any Underwriter, any
Rating Agency and/or the Certificateholders, the holder of a Serviced Companion
Mortgage Loan, the holder of a B Note or Certificate Owners. Any transmittal of
information by the applicable Master Servicer or the Servicer Report
Administrator, as the case may be, to any Person other than the Trustee, the
Paying Agent, a Master Servicer, the Special Servicer, the Rating Agencies, the
Operating Adviser, the Servicer Report Administrator or the Depositor may be
accompanied by a letter from the applicable Master Servicer or the Servicer
Report Administrator, as the case may be, containing the following provision:
"By receiving the information set forth herein, you hereby acknowledge
and agree that the United States securities laws restrict any person who
possesses material, non-public information regarding the Trust which issued
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 from purchasing or selling such Certificates
in circumstances where the other party to the transaction is not also in
possession of such information. You also acknowledge and agree that such
information is being provided to you for the purpose of, and such
information may be used only in connection with, evaluation by you or
another Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
(e) A Master Servicer or the Servicer Report Administrator, as the
case may be, may, at its discretion, make available by electronic media and
bulletin board service certain information and may make available by electronic
media or bulletin board service (in addition to making such information
available as provided herein) any reports or information required by this
Agreement that such Master Servicer or the Servicer Report Administrator, as the
case may be, is required to provide to any of the Rating Agencies, the Depositor
and anyone the Depositor reasonably designates.
(f) A Master Servicer or the Servicer Report Administrator, as the
case may be, shall cooperate in providing the Rating Agencies with such other
pertinent information relating to the Mortgage Loans as is or should be in their
respective possession as the Rating Agencies may reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the 1933 Act, each Master Servicer agrees to provide to the Paying Agent or the
Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof, any
Certificate Owner therein and to any prospective purchaser of the Certificates
or beneficial interest therein reasonably designated by the Paying Agent or the
Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent,
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as applicable, subject to this Section 8.16 and the provisions of Sections 5.4
and 8.15, any information prepared by such Master Servicer that is required to
be provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the 1933 Act, including, without limitation,
copies of the reports and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the applicable
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the applicable Master Servicer chooses to deliver the
information directly, the Depositor, the Placement Agents, the Underwriters, the
Paying Agent or the Luxembourg Paying Agent shall be responsible for the
physical delivery of the information requested pursuant to this Section 8.16. As
a condition to the applicable Master Servicer making any report or information
available upon request to any Person other than the parties hereto, such Master
Servicer may require that the recipient of such information acknowledge that
such Master Servicer may contemporaneously provide such information to the
Depositor, the Trustee, the Paying Agent, the Luxembourg Paying Agent, the
Placement Agents, the Underwriters, any Rating Agency and/or the
Certificateholders and Certificate Owners. A Master Servicer will be permitted
to require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, the Paying Agent, the Placement Agents or the
Underwriters) sufficient to cover the reasonable costs and expenses of making
such information available.
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SECTION 8.17 INSPECTIONS. The applicable Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans and
Non-Serviced Mortgage Loans, every calendar year beginning in 2006 or every
second calendar year beginning in 2006, if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; provided that the applicable
Master Servicer shall, at the expense of the Trust, inspect or cause to be
inspected each Mortgaged Property related to a Mortgage Loan that has a Debt
Service Coverage Ratio that falls below 1.0x and provided further, that with
respect to any Mortgage Loan or Loan Pair that has a Principal Balance of less
than $2,000,000 and has been placed on the CMSA Watch List, the applicable
Master Servicer shall, at the expense of the Trust and at request of the
Controlling Class, inspect or cause to be inspected the related Mortgaged
Property every calendar year beginning in 2006 so long as such Mortgage Loan or
Loan Pair continues to be on the CMSA Watch List; provided, if such Mortgage
Loan or Loan Pair is no longer on the CMSA Watch List at the time the inspection
was scheduled, no such inspection shall be required. The applicable Master
Servicer shall prepare an Inspection Report relating to each inspection. The
applicable Master Servicer shall promptly forward the applicable Inspection
Report to the Trustee, the Operating Adviser, the Special Servicer, solely as it
relates to any Loan Pair, also to the holder of the related Serviced Companion
Mortgage Loan, and solely as it relates to any A/B Mortgage Loan, to the holder
of the related B Note, and upon request, to any Certificateholder, any
Certificate Owner, the Underwriters, the Rating Agencies and any Seller. The
Special Servicer shall have the right to inspect or cause to be inspected (at
its own expense) every calendar year any Mortgaged Property related to a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided that the
Special Servicer notifies the applicable Master Servicer prior to such
inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, each Master
Servicer shall have the following powers:
(a) (i) The applicable Master Servicer in accordance with the
Servicing Standard may agree to any modification, waiver, amendment or consent
of or relating to any term other than a Money Term or other material term of a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note that is not a
Specially Serviced Mortgage Loan (such terms to include, without limitation,
Master Servicer Consent Matters set forth in Section 8.3(a) hereof), provided
that such amendment would not result in an Adverse REMIC Event; and provided,
further that if any consent relates to a release of a letter of credit relating
to any Mortgage Loan (other than letters of credit or portions thereof released
upon satisfaction of conditions specified in the related agreements), then (i)
the applicable Master Servicer shall notify the Special Servicer of any
Mortgagor's request to release such letter of credit which such Master Servicer
recommends to release, and (ii) if the terms of the related Mortgage Loan do not
require such Master Servicer to approve such release, then the Special Servicer,
subject to the consent or deemed consent of the Operating Adviser (unless such
consent or deemed consent is not required pursuant to the penultimate paragraph
of Section 9.39), shall within fifteen Business Days provide notice to such
Master Servicer as to whether such Master Servicer should approve the release
(and the failure of the Special Servicer to give such Master Servicer such
notice shall automatically be deemed to be
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an approval by the Special Servicer that the applicable Master Servicer should
grant such release). Notwithstanding the preceding sentence, with respect to an
A/B Mortgage Loan, if an A/B Mortgage Loan as to which the related holder of the
related B Note is the directing or controlling holder under the related
Intercreditor Agreement, then the Special Servicer's right to consent to such
matters shall be exercisable by such holder of the related B Note if such holder
is the directing or controlling holder under the related Intercreditor Agreement
(unless such consent or deemed consent of such B Noteholder is not required
pursuant to the operation of provisions of the related Intercreditor Agreement
that (but for their applicability to consents of the B Noteholder) are similar
to the provisions of the penultimate paragraph of Section 9.39). Notwithstanding
the second preceding sentence, if the applicable Master Servicer recommends to
approve such modification, waiver, amendment or consent which is not a Master
Servicer Consent Matter (including, without limitation, any waiver of any
requirement that the Mortgagor post additional reserves or a letter of credit
upon the failure of the Mortgagor to satisfy conditions specified in the
Mortgage Loan documents), such Master Servicer shall provide to the Special
Servicer a copy of such Master Servicer's recommendation and the relevant
information obtained or prepared by such Master Servicer in connection
therewith; provided, that (A) subject to the Operating Adviser's (or the holder
of a B Note, as applicable) consent (and the penultimate paragraph of Section
9.39 and any authority of the Special Servicer to act without such consent) or
deemed consent, the Special Servicer shall have the right hereunder to grant or
withhold consent to any such proposed modification, waiver, amendment or
consent, and such consent of the Special Servicer shall be consistent with the
Servicing Standard, (B) failure of the Special Servicer to notify the applicable
Master Servicer, within fifteen Business Days (or in the case of the A/B
Mortgage Loan, within thirty-five (35) Business Days) following such Master
Servicer's delivery of the recommendation described above, of its determination
to grant or withhold such consent shall be deemed to constitute a grant of such
consent and (C) the applicable Master Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described above. Notwithstanding anything in this Agreement to
the contrary, the applicable Master Servicer shall not be required to obtain or
request the consent of the Special Servicer in connection with any modification,
waiver or amendment, or granting its consent to transactions, under one or more
of the Mortgage Loans that in each case such Master Servicer has determined (in
accordance with the Servicing Standard) is immaterial. In any event, the
applicable Master Servicer shall promptly notify the Special Servicer of any
material modification, waiver, amendment or consent executed by such Master
Servicer pursuant to this Section 8.18(a)(i) and provide to the Special Servicer
a copy thereof. Notwithstanding the foregoing provisions of this Section 8.18,
if the Mortgage Loan documents require a Mortgagor to pay a fee for an
assumption, modification, waiver, amendment or consent that would be due or
partially due to the Special Servicer, then the applicable Master Servicer shall
not waive the portion of such fee due to the Special Servicer without the
Special Servicer's approval.
(ii) The applicable Master Servicer may, without the consent of
any other Person, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date if in such Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders and
the holders of the related B Note and Serviced Companion Mortgage Loan (as a
collective whole) on
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a net present value basis than liquidation of such Mortgage Loan and the
Mortgagor has obtained an executed written commitment (subject only to
satisfaction of conditions set forth therein) for refinancing of the Mortgage
Loan or purchase (for an amount sufficient to satisfy such Mortgage Loan) of the
related Mortgaged Property within such 60-day period and continues to make the
Assumed Scheduled Payments with respect to such Balloon Mortgage Loan. The
applicable Master Servicer shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor in
connection with any extension pursuant to the immediately preceding sentence. In
addition, the applicable Master Servicer may, with the consent of the Special
Servicer after consultation with the Operating Adviser, or the holder of a B
Note, as applicable (such consent to be obtained by the applicable Master
Servicer no later than 30 days following the Maturity Date of the applicable
Balloon Mortgage Loan and, in connection with any request by such Master
Servicer for such consent, such Master Servicer shall provide the Special
Servicer with a recommendation and the materials on which such recommendation is
based), otherwise extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan for up to one year (but for no more than
two (2) such extensions of up to one year each) provided that such extension
does not extend beyond the date that is two years prior to the Rated Final
Distribution Date, if the related Borrower has failed to make the Balloon
Payment on such Mortgage Loan or if in the applicable Master Servicer's sole
judgment exercised in good faith (and evidenced by an Officer's Certificate), a
default in the payment of the Balloon Payment is reasonably foreseeable. The
applicable Master Servicer shall process all such extensions referred to in the
immediately preceding sentence and shall be entitled to (as additional servicing
compensation) 50% of any extension fees collected from a Mortgagor with respect
to any such extension, and the Special Servicer shall be entitled to the other
50% of such extension fees. Following any such two extensions of the maturity
date of a Mortgage Loan which the applicable Master Servicer is permitted to
approve pursuant to the third sentence of this Section 8.18(a)(ii), the Special
Servicer and not such Master Servicer shall be responsible for determining
whether to further extend and, if so, processing the extension of, the maturity
date of such Mortgage Loan; provided, that it shall not be a Servicing Transfer
Event with respect to any such extension of the maturity date of such Mortgage
Loan by such Master Servicer or the Special Servicer in accordance with this
Section 8.18(a)(ii) (if such extension is effected no later than 30 days
following the date on which the Balloon Payment was first due, taking into
account any previous extensions thereof, and at such time no other circumstance
referred to in the definition of "Servicing Transfer Event" exists that would
cause such Mortgage Loan to be characterized as a Specially Serviced Mortgage
Loan) until such time as the Special Servicer has approved three such extensions
(of up to one year each) and the Borrower has defaulted at the end of such third
extension. In connection with an extension of the maturity date of a Mortgage
Loan (that is not a Specially Serviced Mortgage Loan) approved by the Special
Servicer in accordance with the preceding sentence, the Special Servicer shall
process all requests and related documentation and shall be entitled to retain
100% of any modification fee or extension fee that is actually paid by the
related Mortgagor. The Special Servicer shall promptly notify the applicable
Master Servicer of any extension granted by the Special Servicer in accordance
with this paragraph.
(b) The applicable Master Servicer may require, in its discretion
(unless prohibited or otherwise provided in the Mortgage Loan documents), as a
condition to granting any request by a Mortgagor for any consent, modification,
waiver, amendment or collateral release, that such Mortgagor pay to such Master
Servicer a reasonable and customary modification fee to
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the extent permitted by law; provided that the collection of such fee shall not
be permitted if collection of such fee would cause a "significant modification"
(within the meaning of Treasury Regulation Section 1.860G-2(b) of the Mortgage
Loan). Except as provided in the last sentence of this Section 8.18(b) and
Section 8.18(a)(ii), the applicable Master Servicer shall be entitled to (as
additional servicing compensation) 100% of any Modification Fees collected from
a Mortgagor in connection with a consent, waiver, modification or amendment of a
non-Specially Serviced Mortgage Loan executed or granted pursuant to Section 8.3
or this Section 8.18. The applicable Master Servicer may charge the Mortgagor
for any costs and expenses (including attorneys' fees and rating agency fees)
incurred by such Master Servicer or the Special Servicer (which amounts shall be
reimbursed to the Special Servicer) in connection with any request for a
modification, waiver or amendment. The applicable Master Servicer agrees to use
its best reasonable efforts in accordance with the Servicing Standard to collect
such costs, expenses and fees from the Mortgagor, provided that the failure or
inability of the Mortgagor to pay any such costs and expenses shall not impair
the right of such Master Servicer to cause such costs and expenses (but not
including any modification fee), and interest thereon at the Advance Rate, to be
paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid
by the Mortgagor). If the applicable Master Servicer believes that the costs and
expenses (including attorneys' fees) to be incurred by such Master Servicer in
connection with any request for a modification, waiver or amendment will result
in a payment or reimbursement by the Trust, then such Master Servicer shall
notify the Special Servicer. The Special Servicer shall be entitled to, and the
applicable Master Servicer shall forward to the Special Servicer, 50% of any
Modification Fees collected with respect to a consent, waiver, modification or
amendment executed or granted by such Master Servicer if the approval or consent
of the Special Servicer was required in connection therewith.
(c) The applicable Master Servicer shall notify the Trustee, the
Paying Agent, the Operating Adviser, the holder of the B Note, if applicable and
the Special Servicer of any modification, waiver or amendment of any term of any
Mortgage Loan permitted by it under this Section and the date thereof, and shall
deliver to the Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly following the execution thereof except to the extent such documents
have been submitted to the applicable recording office, in which event the
applicable Master Servicer shall promptly deliver copies of such documents to
the Trustee. The applicable Master Servicer shall not agree to any modification,
waiver, or amendment of any Money Term of a Mortgage Loan or any term of a
Specially Serviced Mortgage Loan. The applicable Master Servicer shall notify
the holder of the B Note and the Serviced Companion Mortgage Loan of any
modification of the monthly payments of an A/B Mortgage Loan or a Loan Pair, as
the case may be, and such monthly payments shall be allocated in accordance with
the related Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide
for certain conditions to be satisfied prior to the applicable Master Servicer
releasing additional collateral for the Mortgage Loan (e.g., the release,
reduction or termination of reserves or letters of credit or the establishment
of reserves), then such Master Servicer shall be permitted to waive any such
condition without obtaining the consent of the Special Servicer, provided that
(1) the aggregate amount of the related releases or establishments is no greater
than the smaller of 10% of the outstanding unpaid Principal Balance or $75,000
or (2) the condition to be waived is deemed to be non-material in accordance
with the Servicing Standard. Notwithstanding the foregoing,
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without the Special Servicer's consent or except as provided in the specific
Mortgage Loan documents, the applicable Master Servicer shall not waive: (1) a
requirement for any such additional collateral to exist, or (2) a lock box
requirement.
(e) (i) With respect to the Mortgage Loan designated as Mortgage Loan
No. 1 on the Mortgage Loan Schedule, the applicable Master Servicer, to the
extent permitted under the related Mortgage Loan Documents, shall obtain a
Rating Agency Confirmation at the expense of the related Mortgagor with respect
to any replacement of the related property manager. (ii) With respect to the
Mortgage Loan designated as Mortgage Loan No. 2 on the Mortgage Loan Schedule,
the applicable Master Servicer, to the extent permitted under the related
Mortgage Loan Documents, shall obtain a Rating Agency Confirmation at the
expense of the related Mortgagor with respect to any replacement of the related
property manager.
(f) The applicable Master Servicer will not be required to obtain a
Rating Agency Confirmation in connection with this Agreement unless the terms of
this Agreement specifically requires such Master Servicer to do so, and if so
required by the terms of this Agreement, the applicable Master Servicer shall
not be permitted to waive (i) the Rating Agency Confirmation requirement or (ii)
the obligation of a Mortgagor to pay all or any portion of any fee payable in
connection with obtaining the Rating Agency Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The applicable Master Servicer shall send a written notice to the
Special Servicer, the Operating Adviser, the Rating Agencies, the Paying Agent,
the Trustee and solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note and solely as it relates to any Loan Pair, to the holder of
the related Serviced Companion Mortgage Loan, within two Business Days after
becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan,
which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and whether such Mortgage Loan is covered by an Environmental Insurance Policy
(and for purposes of stating whether such Mortgage Loan is covered by an
Environmental Insurance Policy the applicable Master Servicer may rely on
Schedule X attached hereto) and, except for the Rating Agencies, the Paying
Agent, and the Trustee, shall be accompanied by a copy of the Servicer Mortgage
File. The Special Servicer shall not be liable for its failure to deliver the
notice set forth in Section 9.36(a) if such failure is caused by its failure to
receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the applicable Master Servicer shall
notify the related Mortgagor of such transfer in accordance with the Servicing
Standard (the form and substance of such notice shall be reasonably satisfactory
to the Special Servicer).
(c) Any calculations or reports prepared by the applicable Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to such Master Servicer in writing by the Special
Servicer as provided hereby. The applicable Master Servicer shall have no duty
to investigate or confirm the accuracy of any information provided to it by the
Special Servicer and shall have no liability for the inaccuracy of any of its
reports due to the inaccuracy of the information provided by the Special
Servicer.
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(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the Special Servicer, in order for the Special
Servicer to comply with its obligations under this Agreement, such information
(and in the form and medium) as the Special Servicer may reasonably request in
writing from time to time, provided that (i) such Master Servicer shall not be
required to produce any ad hoc reports or incur any unusual expense or effort in
connection therewith and (ii) if such Master Servicer elects to provide such ad
hoc reports, it may require the Special Servicer to pay a reasonable fee to
cover the costs of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH MASTER
SERVICER.
(a) The Xxxxx Fargo Master Servicer, hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) such Master Servicer is duly organized, validly existing and
in good standing as a national banking association under the laws of the United
States, and shall be and thereafter remain, in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect such Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) such Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. Such Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by such Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the Special
Servicer and the Other Master Servicer, evidences the valid and binding
obligation of such Master Servicer enforceable against such Master Servicer in
accordance with its terms subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, receivership and other
similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to such Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or
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enforceability of this Agreement or its ability to service the relevant Mortgage
Loans or to perform any of its other obligations hereunder in accordance with
the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by such Master Servicer
contemplated by this Agreement are in the ordinary course of business of such
Master Servicer and such Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) The PAR Master Servicer, hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) such Master Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of Delaware, and
shall be and thereafter remain, in compliance with the laws of each State in
which any related Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect such Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) such Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. Such Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by such Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the Special
Servicer and the Other Master Servicer, evidences the valid and binding
obligation of such Master Servicer enforceable against such Master Servicer in
accordance with its terms subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, receivership and other
similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order
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applicable to it of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which in the good faith and
reasonable judgment of such Master Servicer materially and adversely affects its
ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to such Master Servicer's
knowledge, threatened, against it, that would in such Master Servicer's good
faith and reasonable judgment materially and adversely affect the execution,
delivery or enforceability of this Agreement or its ability to service the
relevant Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(v) no consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the execution,
delivery and performance by it of, or compliance by it with, this Agreement, or
the consummation of the transactions contemplated hereby, and such Master
Servicer possesses all licenses and authorizations necessary to perform its
obligations under this Agreement, except for those consents, approvals,
authorizations, orders or licenses that previously have been obtained or where
the lack thereof would not have a material adverse effect on the ability of the
Master Servicer to perform its obligations under this Agreement; and
(vi) the performance of the services by such Master Servicer
contemplated by this Agreement are in the ordinary course of business of such
Master Servicer and such Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(c) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this Agreement.
(d) Any cause of action against the applicable Master Servicer arising
out of the breach of any of its representations and warranties made in this
Section shall accrue upon the giving of written notice to applicable Master
Servicer by any of the Trustee or the applicable Master Servicer. The applicable
Master Servicer shall give prompt notice to the Trustee, the Depositor and the
Special Servicer of the occurrence, or the failure to occur, of any event that,
with notice or the passage of time or both, would cause any representation or
warranty given by it in this Section to be untrue or inaccurate in any respect.
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SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which a Master
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which such Master Servicer
shall be a party, or any Person succeeding to the business of such Master
Servicer, shall be the successor of such Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing direct beneficial ownership interests in any Serviced
Companion Mortgage Loan or B Note). If the conditions to the provisions in the
foregoing sentence are not met, the Trustee may terminate the applicable Master
Servicer's servicing of the Mortgage Loans pursuant hereto, such termination to
be effected in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, a Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that such Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of a Master Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Trustee. No such
resignation shall become effective until a successor servicer designated by the
Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the applicable Master Servicer's responsibilities and obligations under
this Agreement and Rating Agency Confirmation (including with respect to any
securities rated by a Rating Agency evidencing interests in the A Notes and any
B Note) shall have been obtained. Notice of such resignation shall be given
promptly by such Master Servicer to the Trustee.
(b) A Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (x) is available, and (y) is willing to assume the
obligations, responsibilities, and covenants to be performed hereunder by such
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation to that herein provided; (ii) such Master Servicer
bears all costs associated with its resignation and the transfer of servicing;
and (iii) Rating Agency Confirmation is obtained with respect to such servicing
transfer, as evidenced by a letter delivered to the Trustee by each Rating
Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER.
Each Master Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the applicable Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the applicable Master Servicer hereunder or (B)
assign and delegate all of its duties hereunder; provided, however, that with
respect to clause (B), (i) the applicable Master Servicer gives the Depositor,
the Special Servicer, the holder of the B Note (only if such
assignment/delegation relates to the related A/B Mortgage Loan), the holder of
the Serviced Companion Mortgage Loan (only if such assignment/delegation relates
to the related Loan Pair) and the Trustee notice of such assignment and
delegation; (ii) such purchaser
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or transferee accepting such assignment and delegation executes and delivers to
the Depositor and the Trustee an agreement accepting such assignment, which
contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the applicable Master Servicer,
with like effect as if originally named as a party to this Agreement; (iii) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(iv) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. In the case of any such assignment and delegation in
accordance with the requirements of subclause (B) of this Section, the
applicable Master Servicer shall be released from its obligations under this
Agreement, except that such Master Servicer shall remain liable for all
liabilities and obligations incurred by it as a Master Servicer hereunder prior
to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the applicable Master Servicer
may appoint the Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICERS AND
OTHERS.
(a) Neither the Master Servicers nor any of the directors, officers,
employees or agents of the Master Servicers shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent, the
Paying Agent, the Placement Agents, the Underwriters, the holder of any Serviced
Companion Mortgage Loan, the holder of any B Note or the Special Servicer for
any action taken or for refraining from the taking of any action in good faith,
or using reasonable business judgment, consistent with the Servicing Standard;
provided that this provision shall not protect the applicable Master Servicer or
any such person against any breach of a representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties under this
Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicers and any director, officer, employee or agent of
the Master Servicers may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person (including, without
limitation, the Special Servicer) respecting any matters arising hereunder.
Neither Master Servicer shall be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement; provided that such Master
Servicer may in its sole discretion undertake any such action which it may
reasonably deem necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Mortgage Loans, the interests of the
holder of any B Note or the interests of the holder of any Serviced Companion
Mortgage Loan (subject to the Special Servicer's servicing of Specially Serviced
Mortgage Loans as contemplated herein), or shall undertake any such action if
instructed to do so by the Trustee. In such event, all legal expenses and costs
of such action shall be expenses and costs of the Trust, and such Master
Servicer shall be entitled to be reimbursed therefor as Servicing Advances as
provided by Section 5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, neither Master Servicer shall have liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, each Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither
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Master Servicer, nor any director, officer, employee, agent or Affiliate, shall
be liable for any error of judgment made in good faith by any officer, unless it
shall be proved that such Master Servicer or such officer was negligent in
ascertaining the pertinent facts. Neither Master Servicer nor any director,
officer, employee, agent or Affiliate, shall be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Agreement.
(c) Neither Master Servicer shall be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent, the Trustee, the Fiscal Agent
or the Other Master Servicer in this Agreement. The Trust shall indemnify and
hold harmless each Master Servicer from any and all claims, liabilities, costs,
charges, fees or other expenses which relate to or arise from any such breach of
representation, warranty or covenant to the extent such Master Servicer is
unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) a Master Servicer may rely, and shall be protected in acting
or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format)
reasonably believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) a Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) a Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) each Master Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed by it to be genuine
and provided by any Mortgagor or manager of a Mortgaged Property.
(e) Each Master Servicer and any director, officer, employee or agent
of such Master Servicer shall be indemnified by the Trustee, the Fiscal Agent,
the Paying Agent and the Special Servicer, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys' fees
incurred in connection with any legal action relating to the Trustee's, the
Fiscal Agent's, the Paying Agent's, the Special Servicer's or the Other Master
Servicer's, as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by reason of
negligent disregard of its respective
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duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of
such Master Servicer's duties hereunder or by reason of negligent disregard of
such Master Servicer's obligations and duties hereunder. The applicable Master
Servicer shall immediately notify the Trustee, the Paying Agent and the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling such Master Servicer to indemnification hereunder,
whereupon the Trustee, the Paying Agent or the Special Servicer, in each case,
to the extent the claim is related to its respective willful misfeasance, bad
faith or negligence, may assume the defense of any such claim (with counsel
reasonably satisfactory to such Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee, the Paying Agent
and the Special Servicer shall not affect any rights that the applicable Master
Servicer may have to indemnification under this Agreement or otherwise, unless
the Trustee's, the Paying Agent's or the Special Servicer's defense of such
claim is materially prejudiced thereby. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the applicable
Master Servicer hereunder. Any payment hereunder made by the Trustee, the Paying
Agent, the Fiscal Agent or the Special Servicer pursuant to this paragraph to
the applicable Master Servicer shall be paid from the Trustee's, the Paying
Agent's, the Fiscal Agent's or Special Servicer's own funds, without
reimbursement from the Trust therefor except to the extent achieved through
subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee, the Paying Agent, the Fiscal Agent
or the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee,
the Paying Agent, the Fiscal Agent or the Special Servicer, as the case may be,
was (x) not culpable or (y) found to not have acted with willful misfeasance,
bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) Each Master Servicer and any director, officer, employee or agent
of such Master Servicer (the "Master Servicer Indemnified Parties") shall be
indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes, as provided in the following paragraph, against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses (collectively, "Master
Servicer Losses") incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B
Notes, any REO Property or the Certificates or any exercise of any right under
this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of the
applicable Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence, indemnification for
Master Servicer Losses described in the preceding paragraph (including in the
case of such Master Servicer Losses that relate primarily to the administration
of the Trust, to any REMIC Pool or to any determination respecting the amount,
payment or avoidance of any tax under the REMIC provisions of the Code or the
actual payment of any REMIC tax or expense) shall be paid out of collections on,
and other proceeds of, the Mortgage Loans as a whole but not out of collections
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on, or other proceeds of, any Serviced Companion Mortgage Loan or any B Note. In
the case of any such Master Servicer Losses that do not relate primarily to the
administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then such
indemnification shall be paid (x) first, out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, in the relative proportions provided for in the applicable
Intercreditor Agreement and (y) if the collections and proceeds described in
subclause (x) of this clause (1) are not sufficient to so indemnify the Master
Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage Loan,
then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan, in the relative proportions provided
for in the related Loan Pair Intercreditor Agreement and (z) if the aggregate
collections and proceeds described in subclauses (x) and (y) of this clause (2)
are not sufficient to so indemnify the Master Servicer Indemnified Parties on a
current basis, then the balance of such indemnification shall be paid out of
collections on, and other proceeds of, the Mortgage Loans as a whole.
The applicable Master Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to such Master Servicer) and out of
the Trust pay all expenses in connection therewith, including counsel fees, and
out of the Trust promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. The
indemnification provided herein shall survive the termination of this Agreement.
The Trustee, the Paying Agent or the applicable Master Servicer shall promptly
make from the applicable Certificate Account (and, if and to the extent that the
amount due shall be paid from collections on, and other proceeds of, any
Serviced Companion Mortgage Loan or any B Note, as described above, out of the
related Serviced Companion Mortgage Loan Custodial Account or the related A/B
Loan Custodial Account) any payments certified by the applicable Master Servicer
to the Trustee and the Paying Agent as required to be made to such Master
Servicer pursuant to this Section 8.25.
(b) The applicable Master Servicer agrees to indemnify the Trustee,
the Fiscal Agent, the Special Servicer, the Trust, the Depositor, the Paying
Agent, and any director, officer, employee, agent or Controlling Person thereof,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from
or as a result of the willful misfeasance, bad faith or negligence in the
performance of any of such Master Servicer's duties
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hereunder or by reason of negligent disregard of such Master Servicer's
obligations and duties hereunder. The Trustee, the Fiscal Agent, the Special
Servicer, the Paying Agent or the Depositor, as applicable, shall immediately
notify the applicable Master Servicer if a claim is made by any Person with
respect to this Agreement or the Mortgage Loans entitling the Trustee, the
Fiscal Agent, the Depositor, the Special Servicer, the Paying Agent or the Trust
to indemnification under this Section 8.25(b), whereupon such Master Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the
Depositor, as applicable) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the applicable Master Servicer shall not affect any rights
the Trustee, the Fiscal Agent, the Special Servicer, the Depositor, the Paying
Agent or the Trust may have to indemnification under this Agreement or
otherwise, unless such Master Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or termination of the
applicable Master Servicer, the Fiscal Agent, the Special Servicer the Paying
Agent and the Trustee. Any expenses incurred or indemnification payments made by
the applicable Master Servicer shall be reimbursed by the party so paid, if a
court of competent jurisdiction makes a final, non-appealable judgment that the
conduct of such Master Servicer was not culpable or that such Master Servicer
did not act with willful misfeasance, bad faith or negligence.
(c) Reserved.
(d) Any Non-Serviced Mortgage Loan Master Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Master Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Master Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 8.26 1934 ACT REPORTING
(a) Each Master Servicer, the Special Servicer, the Paying Agent, the
Trustee and the Fiscal Agent shall reasonably cooperate with the Depositor in
connection with the Trust's satisfaction of its reporting requirements under the
1934 Act. Within 15 days after each Distribution Date, the Paying Agent shall
prepare, execute and file on behalf of the Trust any Forms 8-K customary for
similar securities as required by the 1934 Act and the rules and regulations of
the Securities and Exchange Commission (the "Commission") thereunder; provided
that the Depositor shall file the initial Form 8-K in connection with the
issuance of the Certificates. The Paying Agent shall file each Form 8-K with a
copy of the related Monthly Certificateholders Report attached thereto. If the
Depositor directs that any other attachments are to be filed with any Form 8-K,
such attachments shall be delivered to the Paying Agent in
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XXXXX-compatible form or as otherwise agreed upon by the Paying Agent and the
Depositor, at the Depositor's expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th
of each year (or such earlier date as may be required by the 1934 Act and the
rules and regulations of the Commission), the Paying Agent shall prepare and
file on behalf of the Trust a Form 10-K, in substance as required by applicable
law or applicable interpretations thereof of the staff of the Commission. Such
Form 10-K shall include as exhibits each annual statement of compliance
described under Sections 8.12 and 9.18 and each accountant's report described
under Sections 8.13 and 9.19, in each case to the extent they have been timely
delivered to the Paying Agent. If they are not so timely delivered, the Paying
Agent shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Paying Agent. Each Form 10-K
shall also include any Xxxxxxxx-Xxxxx Certification required to be included
therewith, as described in paragraph (b) of this Section 8.26. Neither the
Paying Agent nor the applicable Master Servicer shall have any liability with
respect to any failure to properly prepare, execute or file such periodic
reports resulting from such Master Servicer's or the Paying Agent's inability or
failure to obtain any information not resulting from its own negligence, bad
faith or willful misconduct. Prior to January 30 of the first year in which the
Paying Agent is able to do so under applicable law, the Paying Agent shall file
a Form 15 relating to the automatic suspension of reporting in respect of the
Trust under the 0000 Xxx.
(b) The Form 10-K shall include any certification (the "Xxxxxxxx-Xxxxx
Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx
Act of 2002, and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the Commission's staff) and
a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating
Agencies. An officer of the Depositor shall sign the Xxxxxxxx-Xxxxx
Certification. On or before March 20th of each year with respect to which a Form
10-K is filed by the Paying Agent, as set forth above, the applicable Master
Servicer and the Special Servicer (each, a "Performing Party") shall provide to
the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person")
a certification (each, a "Performance Certification"), in the form set forth on
Exhibit CC hereto on which the Certifying Person, the Depositor (if the
Certifying Person is an individual), and the Depositor's partner,
representative, Affiliate, member, manager, director, officer, employee or agent
(collectively with the Certifying Person, "Certification Parties") can rely. In
addition, in the event that any Serviced Companion Mortgage Loan is deposited
into a commercial mortgage securitization, on or before March 20th of each year
with respect to which a Form 10-K is filed by the related trustee for such
commercial mortgage securitization, the applicable Master Servicer and the
Special Servicer, shall provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification with respect to such commercial mortgage securitization a
Performance Certification (which shall address the matters contained in the
Performance Certification, but solely with respect to the related Serviced
Companion Mortgage Loan) on which such Person and such Person's partner,
representative, Affiliate, member, manager, director, officer, employee or agent
can rely. Notwithstanding the foregoing, nothing in this paragraph shall require
any Performing Party to (i) certify or verify the accurateness or completeness
of any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge and in
accordance with such Performing Party's responsibilities hereunder or under any
other applicable servicing agreement or (iii) with respect to completeness of
information and reports, to certify anything other than that all fields of
information called for in written reports prepared by such Performing Party have
been
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completed except as they have been left blank on their face. In addition, if
directed by the Depositor, such Performing Party shall provide an identical
certification to Depositor's certified public accountants that such Performing
Party provided to its own certified public accountants to the extent such
certification relates to the performance of such Performing Party's duties
pursuant to this Agreement or a modified certificate limiting the certification
therein to the performance of such Performing Party's duties pursuant to this
Agreement. In the event any Performing Party is terminated or resigns pursuant
to the terms of this Agreement, such Performing Party shall provide a
Performance Certification to the Depositor pursuant to this Section 8.26(b) with
respect to the period of time such Performing Party was subject to this
Agreement.
(c) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.26 or (ii) negligence, bad faith or willful misconduct on the
part of the Performing Party in the performance of such obligations.
(d) Nothing contained in this Section 8.26 shall be construed to
require any party to this Agreement other than the Depositor, or any of such
party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification.
The failure of any party to this Agreement other than the Depositor, or any of
such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx
Certification shall not be regarded as a breach by such party of any of its
obligations under this Agreement. This Section 8.26 may be amended by the
parties hereto pursuant to Section 13.3 for purposes of complying with the
Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person
without any Opinions of Counsel, Officer's Certificates, Rating Agency
Confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. Each Master Servicer
shall act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of each REMIC
Pool created hereby as a REMIC and the Excess Interest Grantor Trust as a
grantor trust under the Code. Each Master Servicer shall not (A) take any action
or cause any REMIC Pool to take any action that could (i) endanger the status of
any REMIC Pool as a REMIC under the Code or (ii) result in the imposition of a
tax upon any REMIC Pool (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) or (B) take any action or cause the
Excess Interest Grantor Trust to take any action that could (i) endanger its
status as a grantor trust or (ii) result in the imposition of any tax upon the
Excess Interest Grantor Trust, unless the Trustee shall have received a
Nondisqualification Opinion (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such tax. Each Master Servicer shall comply with
the provisions of Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of a
Master Servicer created hereby (other than the obligation of a Master Servicer
to make payments to the Paying Agent as set forth in Section 8.29 and the
obligations of a Master Servicer to the Trustee, the Paying Agent, the Fiscal
Agent, the Special Servicer and the Trust) shall terminate (i) on the
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date which is the later of (A) the final payment or other liquidation of the
last Mortgage Loan remaining outstanding (and final distribution to the
Certificateholders) or (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) if an Event of Default described
in clauses 8.28(a)(iii), (iv) or (ix) has occurred, 60 days following the date
on which the Trustee or Depositor gives written notice to the applicable Master
Servicer that such Master Servicer is terminated or (iii) if an Event of Default
described in clauses 8.28(a)(i), (ii), (v), (vi), (vii) or (viii) has occurred,
immediately upon the date on which the Trustee or the Depositor gives written
notice to the applicable Master Servicer that such Master Servicer is
terminated. After any Event of Default, the Trustee (i) may elect to terminate a
Master Servicer by providing such notice, and (ii) shall provide such notice if
holders of Certificates representing more than 25% of the Aggregate Certificate
Balance of all Certificates so direct the Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the applicable Master Servicer to remit to the
Paying Agent or the holder of a B Note or otherwise make any payment required to
be remitted by such Master Servicer under the terms of this Agreement, including
any required Advances, which failure continues unremedied as of 10:00 a.m. (New
York City time) on the Business Day following the date on which such deposit was
first required to be made; or
(ii) any failure by the applicable Master Servicer to make a
required deposit to the applicable Certificate Account or the A/B Loan Custodial
Account that continues unremedied for one Business Day following the date on
which such deposit was first required to be made; or
(iii) any failure on the part of the applicable Master Servicer
duly to observe or perform in any material respect any other of the duties,
covenants or agreements on the part of such Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to such Master Servicer by the Depositor or the Trustee;
provided, however, that if such Master Servicer certifies to the Trustee and the
Depositor that such Master Servicer is in good faith attempting to remedy such
failure, such cure period will be extended to the extent necessary to permit
such Master Servicer to cure such failure; provided, further that such cure
period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained
in Section 8.20 hereof that materially and adversely affects the interest of any
holder of any Class of Certificates and that continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the same to
be remedied, shall have been given to the applicable Master Servicer by the
Depositor or the Trustee, provided, however, that if such Master Servicer
certifies to the Trustee and the Depositor that such Master Servicer is in good
faith attempting to remedy such breach, such cure period will be extended to the
extent necessary to permit such Master Servicer to cure such breach; provided,
further that such cure period may not exceed 90 days; or
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(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the applicable Master Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(vi) the applicable Master Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to such Master Servicer or of
or relating to all or substantially all of its property; or
(vii) the applicable Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(viii) the applicable Master Servicer is no longer listed on
S&P's Select Servicer List as a U.S. Commercial Mortgage Master Servicer and is
not reinstated within 60 days and the ratings then assigned by S&P to any
Classes of Certificates are downgraded, qualified or withdrawn (including,
without limitation, being placed on "negative credit watch") in connection with
such removal;
(ix) the Trustee shall receive notice from Fitch or DBRS to the
effect that the continuation of the applicable Master Servicer in such capacity
would result in the downgrade, qualification or withdrawal of any rating then
assigned by Fitch or DBRS to any Class of Certificates; or
(x) the applicable Master Servicer has been downgraded to a
servicer rating level below "CMS3" (or its equivalent) by Fitch.
(b) If the applicable Master Servicer is terminated based upon an
Event of Default set forth in clause (i) (as to the obligation to make P&I
Advances), (viii), (ix) or (x) of Section 8.28(a), then such Master Servicer
shall have the right to enter into a primary servicing agreement with a
successor Master Servicer with respect to all applicable Mortgage Loans, so long
as the successor Master Servicer is listed on S&P's Select Servicer List as a
U.S. Commercial Mortgage Master Servicer and is rated not less than "CPS3" (or
its then equivalent) by Fitch and as approved by DBRS.
(c) Notwithstanding the other provisions of this Section 8.28, (A) if
any Event of Default on the part of the applicable Master Servicer occurs that
affects a Serviced Companion Mortgage Loan or (B) for so long as any Serviced
Companion Mortgage Loan is serviced hereunder and is included in a
securitization that is rated by Xxxxx'x, if the applicable Master Servicer
receives actual knowledge that Xxxxx'x has (i) qualified, downgraded or
withdrawn its rating or ratings of one or more Classes of Certificates, or (ii)
placed one or more Classes of
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Certificates on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been withdrawn by
Xxxxx'x within 60 days of the date that such Master Servicer obtained such
actual knowledge) and, in the case of either of clauses (i) or (ii), citing
servicing concerns with the applicable Master Servicer as the sole or material
factor in such rating action, and in either case, the applicable Master Servicer
is not otherwise terminated in accordance with this Section 8.28, then, at the
request of the holder of such affected Serviced Companion Mortgage Loan, the
Trustee shall require the applicable Master Servicer to appoint, within 30 days
of the Trustee's request, a Sub-Servicer (or, if the related Mortgage Loan is
currently being sub-serviced, to replace, within 30 days of the Trustee's
request, the then-current Sub-Servicer with a new Sub-Servicer) with respect to
the related Mortgage Loan only, but as to no other Mortgage Loan. In connection
with a Master Servicer's appointment of a Sub-Servicer at the request of the
Trustee in accordance with this Section 8.28(c), such Master Servicer shall
obtain a Rating Agency Confirmation (such Rating Agency Confirmation to be an
expense of the requesting Serviced Companion Mortgage Loan holder). The related
Sub-Servicing Agreement shall provide that any Sub-Servicer appointed by the
applicable Master Servicer at the request of the Trustee in accordance with this
Section 8.28(c) shall be responsible for all duties, and shall be entitled to
all compensation, of such Master Servicer under this Agreement with respect to
the subject Loan Pair.
(d) If at any time a Master Servicer that is also the Servicer Report
Administrator is terminated in accordance with the terms of this Agreement, then
the Depositor shall send a written notice of termination to the Servicer Report
Administrator (which notice shall specify the reason for such termination) and
remove such Servicer Report Administrator and appoint a successor Servicer
Report Administrator by written instrument, one copy of which instrument shall
be delivered to the Servicer Report Administrator so removed, one copy to the
successor Servicer Report Administrator, and one copy to each of the Trustee,
the Paying Agent, the Master Servicers and the Rating Agencies. In all such
cases, the Servicer Report Administrator shall bear all costs of transfer to a
successor Servicer Report Administrator, such succession only to take effect
after a successor Servicer Report Administrator has been appointed. In the case
of the initial Servicer Report Administrator, the Depositor must also remove the
PAR Master Servicer in accordance with this Section 8.28.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of the first
paragraph of Section 8.28(a), specifying the Master Servicer Remittance Date
upon which the final transfer by the applicable Master Servicer to the Paying
Agent shall be made, shall be given promptly in writing by such Master Servicer
to the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month of such final distribution. Upon any such termination, the
duties of the applicable Master Servicer (other than the obligation of such
Master Servicer to pay to the Paying Agent the amounts remaining in the
applicable Certificate Account as set forth below and the obligations of such
Master Servicer to the Trustee and the Trust and the Fiscal Agent as provided
herein) shall terminate and such Master Servicer shall transfer to the Paying
Agent the amounts remaining in the applicable Certificate Account (and any
sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the applicable Certificate Account
and any other account or fund maintained with respect to the Mortgage Loans.
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(b) On the date specified in a written notice of termination given to
the applicable Master Servicer pursuant to clause (ii) of the first paragraph of
Section 8.28, or on the date on which a written notice of termination is given
to such Master Servicer pursuant to clause (iii) of the first paragraph of
Section 8.28 all authority, power and rights of such Master Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall
terminate (except for any rights relating to unpaid servicing compensation or
unreimbursed Advances or, (i) if the terminated Master Servicer is Xxxxx Fargo
Bank, National Association, its rights to the applicable Excess Servicing Fee,
subject to Section 8.10(a), or (ii) if the terminated Master Servicer is
Prudential Asset Resources, Inc., its rights to the applicable Excess Servicing
Fee, subject to Section 8.10(a)); provided that in no event shall the
termination of the applicable Master Servicer be effective until a successor
servicer shall have succeeded such Master Servicer as successor servicer,
subject to approval by the Rating Agencies, notified such Master Servicer of
such designation and such successor servicer shall have assumed such Master
Servicer's obligations and responsibilities hereunder, as set forth in an
agreement substantially in the form hereof, with respect to the Mortgage Loans
and, in the circumstances set forth in the last sentence of Section 8.28(b),
entered into a new primary servicing agreement with the applicable predecessor
Master Servicer in substantially the same form as (i) with respect to the Xxxxx
Fargo Master Servicer, Exhibit AA attached hereto and (ii) with respect to the
PAR Master Servicer, Exhibit AA, or otherwise in such form as may be reasonably
acceptable to the applicable predecessor Master Servicer and such successor.
Except as provided in the next sentence, the Trustee may not succeed a Master
Servicer as servicer until and unless it has satisfied the provisions that would
apply to a Person succeeding to the business of such Master Servicer pursuant to
Section 8.22(b) hereof. Notwithstanding the foregoing sentence, in the event
that a Master Servicer is terminated as a result of an event described in
Section 8.28(a)(v), 8.28(a)(vi) or 8.28(a)(vii), the Trustee shall act as
successor servicer immediately upon delivery of a notice of termination to such
Master Servicer and shall use commercially reasonable efforts within 90 days of
assuming the duties of such Master Servicer, either to satisfy the conditions of
Section 8.22(b) hereof or to transfer the duties of such Master Servicer to a
successor servicer who has satisfied such conditions. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the applicable
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The applicable Master Servicer agrees to
cooperate with the Trustee, the Paying Agent and the Fiscal Agent in effecting
the termination of such Master Servicer's responsibilities and rights hereunder
as Master Servicer including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee all documents and
records in electronic or other form reasonably requested by it to enable the
successor servicer designated by the Trustee to assume such Master Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by such Master Servicer in the applicable Certificate Account and
any other account or fund maintained or thereafter received with respect to the
Mortgage Loans.
(c) If the applicable Master Servicer receives a written notice of
termination pursuant to clause (ii) of the first paragraph of Section 8.28
relating solely to an Event of Default set forth in clause (viii), (ix) or (x)
of Section 8.28(a), and if such Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within five Business Days after
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receipt of such written notice of termination, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the
applicable Master Servicer) solicit good faith bids for the rights to service
the Mortgage Loans under this Agreement from at least three but no more than
five Qualified Bidders or, if three Qualified Bidders cannot be located, then
from as many persons as the Trustee can determine are Qualified Bidders. At the
Trustee's request, the applicable Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids. In no event shall the
Trustee be responsible if less than three Qualified Bidders submit bids for the
right to service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as a successor Master
Servicer, and to agree to be bound by the terms hereof, not later than 45 days
after termination of the applicable Master Servicer hereunder. The Trustee shall
select the Qualified Bidder with the highest cash bid (or such other Qualified
Bidder as the applicable Master Servicer may direct) (the "Successful Bidder")
to act as a successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as a successor Master Servicer
pursuant to the terms hereof, and in connection therewith to deliver the amount
of the Successful Bidder's cash bid to the Trustee by wire transfer of
immediately available funds to an account specified by the Trustee no later than
10:00 a.m. New York City time on the date specified for the assignment and
assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as a
successor Master Servicer within 45 days after the termination of the applicable
Master Servicer hereunder or no Successful Bidder was identified within such
45-day period, the Trustee shall have no further obligations under Section
8.29(c) and may act or may select another successor to act as a Master Servicer
hereunder in accordance with Section 8.29(b).
For purposes of the foregoing provisions of Section 8.29(c), the
phrase "rights to service" shall be construed to exclude the Excess Servicing
Rights and those servicing rights and duties as to which Xxxxx Fargo Bank,
National Association or Prudential Asset Resources, Inc., as the case may be,
has made an election for the execution of a primary servicing agreement as
contemplated by Section 8.28(b).
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER SERVICER AND
SPECIAL SERVICER.
No less often than on a monthly basis or as agreed upon by the
applicable Master Servicer and the Operating Adviser, each of the applicable
Master Servicer and the Special Servicer shall, without charge, make a Servicing
Officer available to answer questions from the
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Operating Adviser regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which such Master Servicer or the Special Servicer, as
the case may be, is responsible. The Operating Advisor will provide to the
applicable Master Servicer five (5) Business Days' advance notice of any
Mortgage Loans to be discussed that are not then listed on the CMSA Watch List.
SECTION 8.31 CERTAIN MATTERS WITH RESPECT TO THE CROSSROADS CENTER
MORTGAGE LOAN.
Notwithstanding Section 2.4(f) of the Reserve and Security Agreement
for the Crossroads Center Mortgage Loan, which provides that, if certain
conditions have not been satisfied on or before December 31, 2005, the lender
shall, at its option and in its sole discretion, either apply the remaining
balance of the Holdback Escrow (as defined under the Reserve and Security
Agreement) as a partial prepayment of the Crossroads Center Mortgage Loan or
retain the remaining balance of the Holdback Escrow as further security
therefor, the applicable Master Servicer or the Special Servicer shall, if such
conditions have not been satisfied on or before December 31, 2005, apply the
remaining balance of the Holdback Escrow as a partial prepayment of the
Crossroads Center Mortgage Loan, unless such Master Servicer or the Special
Servicer has received an Opinion of Counsel that retaining the remaining balance
of the Holdback Escrow as further security therefore will not result in an
Adverse REMIC Event.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the Servicing Standard and the
terms of this Agreement. Certain of the provisions of this Article IX make
explicit reference to their applicability to Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note; notwithstanding such explicit
references, references in this Article IX to "Mortgage Loans" shall be
construed, unless otherwise specified, to refer also to such B Note and such
Serviced Companion Mortgage Loan (but any other terms that are defined in
Article I and used in this Article IX shall be construed according to such
definitions without regard to this sentence).
(b) The Special Servicer shall cooperate with the applicable Master
Servicer and provide such Master Servicer with the information reasonably
requested by such Master Servicer, in writing, to the extent required to allow
such Master Servicer to perform its servicing obligations with respect to the
Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the
Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if the Special
Servicer elects to provide
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such ad hoc reports, the Special Servicer may require such Master Servicer to
pay a reasonable fee to cover the costs of the preparation thereof. The Special
Servicer's obligations with respect to the servicing of any Specially Serviced
Mortgage Loan and any related REO Properties shall terminate when such Specially
Serviced Mortgage Loan has become a Rehabilitated Mortgage Loan, unless and
until another Servicing Transfer Event with respect to such Rehabilitated
Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the applicable
Master Servicer, the Operating Adviser (or if applicable, the holder of the B
Note) and the Paying Agent within two Business Days after becoming aware that a
Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall
identify the applicable Mortgage Loan. Upon the receipt of such notice by the
applicable Master Servicer and the Paying Agent, such Mortgage Loan shall become
a Rehabilitated Mortgage Loan and will be serviced by such Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to
a Mortgage Loan and upon the reasonable request of the Special Servicer, the
applicable Master Servicer shall xxxx its records for such Mortgage Loan to
cause any monthly statements for amounts due on such Mortgage Loan to be sent
thereafter to the Special Servicer rather than the related Mortgagor. Upon
receipt of any such monthly statement, the Special Servicer shall, within two
Business Days, advise the applicable Master Servicer of any changes to be made,
and return the monthly statement to such Master Servicer. The applicable Master
Servicer shall thereafter promptly send the corrected monthly statement to the
Mortgagor. If a Mortgage Loan becomes a Rehabilitated Mortgage Loan, the
applicable Master Servicer shall send the monthly statement to the Mortgagor as
it did before such Mortgage Loan became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the applicable Master Servicer with
respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that
has become an REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a
B Note or Serviced Companion Mortgage Loan) shall be deposited in the applicable
Certificate Account, and all amounts collected by the applicable Master Servicer
with respect to a Specially Serviced Mortgage Loan that is a B Note shall be
deposited in the related A/B Loan Custodial Account and all amounts collected by
such Master Servicer with respect to a Specially Serviced Mortgage Loan that is
a Serviced Companion Mortgage Loan shall be deposited in the related Serviced
Companion Mortgage Loan Custodial Account. The applicable Master Servicer shall
within three Business Days after receipt of any such payment, notify the Special
Servicer of the receipt of such payment and the amount thereof. The Special
Servicer shall, within one Business Day thereafter, instruct the applicable
Master Servicer in writing how to apply such payment (with the application of
such payments to be made in accordance with the related Mortgage Loan documents
(including the related Intercreditor Agreement, if any) or in accordance with
this Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with respect
to any one or more Mortgage Loans that are the subject of any Environmental
Insurance Policy, (i) the Special Servicer shall monitor the dates by which any
claim must be made or action must be taken under such Environmental Insurance
Policy to achieve the payment of all amounts thereunder to which the Trust is
entitled in the event the Special Servicer has actual knowledge of any event
giving rise to a claim under such Environmental Insurance Policy (an "Insured
Environmental
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Event") and (ii) if the Special Servicer has actual knowledge of an Insured
Environmental Event with respect to such Mortgage Loan, the Special Servicer
shall take reasonable actions as are in accordance with the Servicing Standard
and the terms and conditions of the related Environmental Insurance Policy to
make a claim thereunder and achieve the payment of all amounts to which the
Trust is entitled thereunder. Any legal fees or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with any such
claim shall be paid by, and reimbursable to, the applicable Master Servicer (of
if applicable, the Special Servicer) as a Servicing Advance. All extraordinary
expenses (but not ordinary and routine or anticipated expenses) incurred by the
Special Servicer in fulfilling its obligations under this Section 9.1 shall be
paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY OF
SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in effect
a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.
The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond
shall be issued by a Qualified Insurer (unless the Special Servicer self insures
as provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Special Servicer is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "A" as rated by Fitch, "A" as rated
by S&P and "A" by DBRS or, if not rated by DBRS, an equivalent rating such as
those listed above by at least two nationally recognized statistical rating
organizations, the Special Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right
to use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the applicable Master Servicer and upon
receipt of a Rating Agency Confirmation from Fitch. The Special Servicer shall
notify the applicable Master Servicer, Trustee and solely as it relates to any
A/B Mortgage Loan, the holder of the related B Note, and solely as it relates to
any Loan Pair, the holder of the related Serviced Companion Mortgage Loan, of
the appointment of any Sub-Servicer of the Special Servicer.
Notwithstanding anything to the contrary contained herein, to the
extent consistent with the Servicing Standard, the Special Servicer may retain
third parties to perform ministerial functions, including, without limitation,
tax monitoring, reconveyances, inspections or similar functions, without
requiring such party to execute a sub-servicing agreement and without complying
with the requirements for a sub-servicing agreement contained herein; provided
that notwithstanding any such appointment and any other provision herein to the
contrary, the Special Servicer shall remain liable for the performance of such
functions hereunder.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement (and,
in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such
Non-Serviced
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Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer), the Special
Servicer is hereby authorized and empowered when the Special Servicer believes
it appropriate in accordance with the Servicing Standard, to take any and all
the actions with respect to Specially Serviced Mortgage Loans which the
applicable Master Servicer may perform as set forth in Section 8.3(a), including
(i) to execute and deliver, on behalf of itself or the Trust (or holder of a B
Note or Serviced Companion Mortgage Loan, as applicable), any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Specially
Serviced Mortgage Loans and with respect to the related REO Properties and (ii)
to effectuate foreclosure or other conversion of the ownership of any REO
Property securing a Mortgage Loan. The Trustee shall execute on the Closing Date
a Power of Attorney in the form of Exhibit S-2 hereto and shall furnish the
Special Servicer from time to time, upon request, with any additional powers of
attorney of the Trust, empowering the Special Servicer to take such actions as
it determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business Days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of such notice advise the Special Servicer that it
has received an Opinion of Counsel (the cost of which shall be an expense of the
Trust) from an attorney duly licensed to practice law in the state where the
related Mortgaged Property or REO Property is located, that it is likely that
the laws of the state in which said action is to be taken either prohibit such
action if taken in the name of the Trust or that the Trust would be adversely
affected under the "doing business" or tax laws of such state if such action is
taken in its name; provided, further, that the Special Servicer shall not be
liable to the extent that it relies on the advice provided in such Opinion of
Counsel. Upon receipt of any such advice from the Trustee, the Special Servicer
shall take such action in the name of such Person or Persons, in trust for the
Trust (or holder of a B Note or Serviced Companion Mortgage Loan, if
applicable), as shall be consistent with the Opinion of Counsel obtained by the
Trustee. Such Person or Persons shall acknowledge in writing that such action is
being taken by the Special Servicer in the name of the Trust (or holder of a B
Note or the Serviced Companion Mortgage Loan, if applicable). In the performance
of its duties hereunder, the Special Servicer shall be an independent contractor
and shall not, except in those instances where it is, after notice to the
Trustee as provided above, taking action in the name of the Trust (or holder of
a B Note or the Serviced Companion Mortgage Loan, if applicable), be deemed to
be the agent of the Trust (or holder of a B Note or the Serviced Companion
Mortgage Loan, as applicable). The Special Servicer shall indemnify the Trustee
for any loss, liability or reasonable expense (including attorneys' fees)
incurred by the Trustee or any director, officer, employee, agent or Controlling
Person of it or its affiliates in connection with any negligent or
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intentional misuse of the foregoing powers of attorney furnished to the Special
Servicer by the Trustee. Such indemnification shall survive the resignation or
termination of the Special Servicer hereunder, the resignation or termination of
the Trustee and the termination of this Agreement. The Special Servicer shall
not have any responsibility or liability for any act or omission of the Trustee,
any Master Servicer or the Depositor that is not attributable to the failure of
the Special Servicer to perform its obligations hereunder. The Special Servicer
may conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2006); provided
further that the Special Servicer shall, at the expense of the Trust, inspect or
cause to be inspected a Mortgaged Property as soon as practicable after the
related Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Special
Servicer shall provide to the applicable Master Servicer (who shall provide,
solely as it relates to any A/B Mortgage Loan, to the holder of the related B
Note, and solely as it relates to any Loan Pair, to the holder of the related
Serviced Companion Mortgage Loan) and the Operating Adviser copies of the
Inspection Reports relating to such inspections as soon as practicable after the
completion of any inspection.
(c) Pursuant to the related Intercreditor Agreement, each owner of a B
Note has agreed that the applicable Master Servicer and the Special Servicer are
authorized and obligated to service and administer such B Note pursuant to this
Agreement.
(d) (i) Pursuant to the related Loan Pair Intercreditor Agreement,
each owner of a Serviced Companion Mortgage Loan has agreed that the applicable
Master Servicer and the Special Servicer are authorized and obligated to service
and administer such Serviced Companion Mortgage Loan pursuant to this Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Special Servicer's obligations and responsibilities hereunder
and the Special Servicer's authority with respect to a Serviced Pari Passu
Mortgage Loan are limited by and subject to the terms of the related Loan Pair
Intercreditor Agreement. At such time when the related Serviced Companion
Mortgage Loan is deposited into a different commercial mortgage securitization
(the "Other Securitization"), the Special Servicer shall be required to consult
with and provide the special servicer of the Other Securitization (the "Other
Special Servicer") in respect thereof with an opportunity to review any proposed
action to be taken in respect thereof as and to the extent set forth in the
related Loan Pair Intercreditor Agreement. (ii) At such time when the related
Serviced Companion Mortgage Loan is deposited into the Other Securitization, and
notwithstanding that the provisions regarding consultation and review periods
referred to clause (i) are not in the related Loan Pair Intercreditor Agreement,
then the Special Servicer shall be required to consult with the Other Special
Servicer in respect thereof, and shall provide the Other Special Servicer with
an opportunity to review any proposed action to be taken in respect thereof. The
Other Special Servicer and the operating adviser of the Other
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Securitization (the "Other Operating Adviser") shall have such opportunity to
consult with the Special Servicer for a period from the date of receipt of the
Special Servicer's written description of its proposed action through (but
excluding) the fifth Business Day following the date of receipt (the "Initial
Review Period"). The Special Servicer shall implement its written proposal if
the Other Special Servicer (in consultation with the Other Operating Adviser)
does not disapprove the proposed action within the Initial Review Period, unless
the Special Servicer has been directed to do otherwise by the Operating Adviser
(in which event the Special Servicer shall advise the Other Special Servicer of
such alternate course of action). If the Other Special Servicer (in consultation
with the Other Operating Adviser) disagrees with any aspect of the written
proposal and, after consulting with the Special Servicer during the Initial
Review Period, is unable to reach agreement on the proper course of action and
notifies the Special Servicer of its disagreement in writing, then the Other
Special Servicer shall be entitled to an additional period of five Business Days
(the "Additional Review Period") to continue its discussions with the Special
Servicer and the Operating Adviser. If the Other Special Servicer and the
Special Servicer agree on a revised course of action within the Initial Review
Period or the Additional Review Period, then the Special Servicer shall revise
the written proposal to reflect the agreed upon revised course of action and
shall implement that course of action. If the Other Special Servicer and the
Special Servicer are unable to agree on the appropriate course of action by the
end of the Additional Review Period, then the Special Servicer shall decide, in
accordance with the Servicing Standard set forth in this Agreement, what course
of action to follow. Subject to and to the extent set forth in the related Loan
Pair Intercreditor Agreement, if an Event of Default has occurred and is
continuing with respect to the Master Servicer or the Special Servicer under
this Agreement, which Event of Default does not relate to any Mortgage Loan
other than the related Loan Pair, then the trustee under the pooling and
servicing agreement relating to the Other Securitization (the "Other Pooling and
Servicing Agreement") shall be entitled to direct the Trustee to (a) terminate
the defaulting Master Servicer or Special Servicer solely with respect to the
related Loan Pair and (b) appoint a successor Master Servicer or Special
Servicer that meets the eligibility requirements of the Other Pooling and
Servicing Agreement and this Agreement; and in such event, the trustee under the
Other Pooling and Servicing Agreement shall exercise its rights set forth in the
preceding sentence at the direction of the certificateholders holding at least
25% of the certificate balance of the certificates issued under the Other
Securitization or the Other Operating Adviser; and the replacement of the Master
Servicer or the Special Servicer with respect to a Loan Pair, as contemplated
above, will in any event be subject to obtaining Rating Agency Confirmation
hereunder and any required Rating Agency Confirmation with respect to the
certificates by the trustee under the Other Pooling and Servicing Agreement.
(e) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer and such Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer are authorized and obligated to
service and administer such Non-Serviced Mortgage Loan pursuant to the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the Special Servicer's obligations and responsibilities hereunder and the
Special Servicer's authority with respect to any Non-Serviced Mortgage Loan are
limited by and subject to the terms of the applicable Non-Serviced Mortgage Loan
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Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage
Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special
Servicer with respect thereto under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement. The Special Servicer shall take such actions as
it shall deem reasonably necessary to facilitate the servicing of any
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the applicable Non-Serviced Mortgage Loan Master
Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special Servicer shall
have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or
may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or ownership interest
in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not
be assumed, or ownership interests in the related Mortgagor may not be
transferred, without the consent of the related mortgagee in connection with any
such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and the holder of the B Note, if applicable, and in
accordance with the REMIC Provisions, take such actions as it deems to be in the
best economic interest of the Trust in accordance with the Servicing Standard,
and may waive or enforce any due-on-sale clause contained in the related
Mortgage Note or Mortgage; provided, however, that if the Principal Balance of
such Mortgage Loan at such time equals or exceeds 5% of the Aggregate
Certificate Balance or exceeds $35,000,000 or is one of the then current top 10
loans (by Principal Balance) in the pool, then prior to waiving the effect of
such provision, the Special Servicer shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Special Servicer shall prepare and deliver to Fitch, S&P and DBRS a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Special
Servicer shall also prepare and provide Fitch, S&P and DBRS with such memorandum
and documentation for all transfer and assumption consents granted for Mortgage
Loans below the threshold set forth above, but for which the Special Servicer's
decision will be sufficient and a Rating Agency Confirmation is not required. As
to any Mortgage Loan that is not a Specially Serviced Mortgage Loan and contains
a provision in the nature of a "due-on-sale" clause, the Special Servicer shall
have the rights and
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duties set forth in Section 8.7(b). The Special Servicer shall be entitled to
100% of all assumption fees in connection with Specially Serviced Mortgage
Loans.
After notice to, and the consent of, the Operating Adviser, or the B
Note holder, if applicable (and subject to the penultimate paragraph of Section
9.39 and any authority of the Special Servicer to act without such consent), the
Special Servicer is also authorized to take or enter into an assignment and
assumption agreement from or with the Person to whom such property has been or
is about to be conveyed, and/or to release the original Mortgagor from liability
upon the Specially Serviced Mortgage Loan and substitute the new Mortgagor as
obligor thereon; provided, that except as otherwise permitted by Section 9.5(c),
any such assignment and assumption or substitution agreement shall contain no
terms that could result in an Adverse REMIC Event. To the extent permitted by
law, the Special Servicer shall enter into an assumption or substitution
agreement that is required under the related Mortgage Loan documents (either as
a matter of right or upon satisfaction of specified conditions) and shall
otherwise enter into any assumption or substitution agreement only if the credit
status of the prospective new mortgagor and the underwriting of the new
mortgagor is in compliance with the Special Servicer's regular commercial
mortgage origination or servicing standards and criteria. The Special Servicer
shall notify the applicable Master Servicer of any such assignment and
assumption or substitution agreement and the Special Servicer shall forward to
the Trustee the original of such agreement, which original shall be added by the
Trustee to the related Mortgage File and shall, for all purposes, be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Sections 9.39 and 9.40, and
the rights and duties of the applicable Master Servicer under Section 8.18, the
Special Servicer may enter into any modification, waiver or amendment
(including, without limitation, the substitution or release of collateral or the
pledge of additional collateral) of the terms of any Specially Serviced Mortgage
Loan, including any modification, waiver or amendment to (i) reduce the amounts
owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would
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increase the recovery on the Specially Serviced Mortgage Loan to
Certificateholders, the holder of the related Serviced Companion Mortgage Loan
and the holder of the related B Note (as a collective whole) on a net present
value basis (the relevant discounting of amounts that will be distributable to
Certificateholders, the holder of the related Serviced Companion Mortgage Loan
and the holder of the related B Note (as a collective whole) to be performed at
a rate, taking into account the related Mortgage Rate (or, in the case of an A/B
Mortgage Loan, such discounting to be performed at the weighted average of the
Mortgage Rate and the stated mortgage rate on the B Note) and the risk of
collection, (C) such modification, waiver or amendment would not cause an
Adverse REMIC Event (including with respect to any securities evidencing
interests in any A Note or any B Note) to occur or adversely affect the tax
status of any trust including a B Note, and (D) if notice to the Operating
Adviser, or the B Note holder of such modification, waiver or amendment is
required pursuant to Section 9.39 or Section 9.40, as applicable, the Special
Servicer has made such notice. The Special Servicer, with respect to any B Note
and any Serviced Companion Mortgage Loan that is a Specially Serviced Mortgage
Loan, shall notify the holder of the B Note and the Serviced Companion Mortgage
Loan, as applicable, of any modification of the monthly payments of an A/B
Mortgage Loan or a Loan Pair, as the case may be, and such monthly payments
shall be allocated in accordance with the related Intercreditor Agreement or
Loan Pair Intercreditor Agreement, as applicable. All notices, reports and
documents sent to the Operating Adviser shall be sent to any B Note holder to
the extent that such notices, reports and documents relate to the related A/B
Mortgage Loan.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Rated Final Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer gives due
consideration to the remaining term of such ground lease. The Special Servicer
shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged
Property covered by a group secured creditor impaired property environmental
insurance policy for more than five years beyond such Mortgage Loan's Maturity
Date unless a new Phase I Environmental Report indicates that there is no
environmental condition or the Mortgagor obtains, at its expense, an extension
of such policy on the same terms and conditions to cover the period through five
years past the extended Maturity Date, provided that, (i) if such Mortgage Loan
is secured by a ground lease, the Special Servicer shall give due consideration
to the remaining term of the ground lease and (ii) in no case shall the Maturity
Date of any such Mortgage Loan be extended past a date that is two years prior
to the Rated Final Distribution Date.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 9.5(c) shall be evidenced
by an Officer's Certificate certifying the information in the proviso to the
first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor to
substitute collateral for all or any portion of a Mortgaged Property pursuant to
Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), if the security interest of the Trust, the holder of any
Serviced Companion Mortgage Loan or the holder of any B Note in such collateral
would be perfected by possession, or if such collateral requires special care or
protection, then prior to agreeing to such substitution or addition of
collateral, the Special Servicer shall make arrangements for such possession,
care or protection, and prior to agreeing to
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such substitution or addition of collateral (or such arrangement for possession,
care or protection) shall obtain the prior written consent of the Trustee with
respect thereto (which consent shall not be unreasonably withheld, delayed or
conditioned); provided, however, that the Trustee shall not be required (but has
the option) to consent to any substitution or addition of collateral or to hold
any such collateral which will require the Trustee to undertake any additional
duties or obligations or incur any additional expense. Notwithstanding the
foregoing, the Special Servicer will not permit a Mortgagor to substitute
collateral for any portion of the Mortgaged Property pursuant to Section 9.5(c)
unless it shall have received the Operating Adviser's consent or the B Note
holder's consent, if applicable, or deemed consent (subject to the penultimate
paragraph of Section 9.39 or any authority of the Special Servicer to act
without such consent) and a Rating Agency Confirmation in connection therewith,
the costs of which to be payable by the related Mortgagor to the extent provided
for in the Mortgage Loan documents. If the Mortgagor is not required to pay for
the Rating Agency Confirmation, then such expense will be paid by the Trust. The
parties hereto acknowledge that if the Trust incurs any Additional Trust Expense
associated solely with the release of collateral that is not required to be paid
by a Mortgagor pursuant to the related Mortgage Loan documents (and such
Additional Trust Expense is not paid by the Mortgagor), including, but not
limited to, rating agency fees, then the sole obligation of the related Seller
shall be to pay an amount equal to such expense to the extent the related
Mortgagor is not required to pay them. Promptly upon receipt of notice of such
unpaid expense, regarding a Specially Serviced Mortgage Loan, the Special
Servicer shall request the related Seller to make such payment by deposit to a
Certificate Account.
(e) The Special Servicer will promptly deliver to the applicable
Master Servicer, the Operating Adviser, the Trustee, the Paying Agent, the
Rating Agencies (and, solely with respect to an A/B Mortgage Loan, the related B
Note Holder) a notice, specifying any such assignments and assumptions,
modifications, waivers or amendments, such notice identifying the affected
Specially Serviced Mortgage Loan. Such notice shall set forth the reasons for
such waiver, modification, or amendment (including, but not limited to,
information such as related income and expense statements, rent rolls, occupancy
status, property inspections, and an internal or external appraisal performed in
accordance with MAI standards and methodologies (and, if done externally, the
cost of such appraisal shall be recoverable as a Servicing Advance subject to
the provisions of Section 4.4 hereof)). The Special Servicer shall also deliver
to the Trustee (or the Custodian), for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment promptly following the execution thereof.
(f) No fee described in this Section shall be collected by the Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulation Section 1.860G-2(b). Subject to the foregoing,
the Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Mortgage Loan from the Mortgagor.
The inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the applicable
Master Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
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(g) The Special Servicer shall cooperate with the applicable Master
Servicer (as provided in Section 8.7) in connection with assignments and
assumptions of Mortgage Loans that are not Specially Serviced Mortgage Loans,
and shall be entitled to receive 50% of any assumption fee paid by the related
Mortgagor in connection with an assignment and assumption executed pursuant to
Section 8.7(a) and 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section
8.7(b). The Special Servicer shall be entitled to 100% of any assumption fee
received in connection with a Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Operating Adviser prior to acting,
and provisions of this Agreement requiring such shall be of no effect, if the
Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, may (and the Special Servicer shall ignore and act without regard to
any such advice, direction or objection that the Special Servicer has
determined, in its reasonable good faith judgment would) (A) require or cause
the Special Servicer to violate applicable law, the terms of any Mortgage Loan,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Excess Interest Grantor Trust, (C)
expose the Trust, the Depositor, any Master Servicer, the Special Servicer, the
Fiscal Agent, the Paying Agent or the Trustee, or any of their respective
Affiliates, officers, directors, employees or agents, to any material claim,
suit or liability, or (D) materially expand the scope of the Special Servicer's
responsibilities under this Agreement.
(i) If any Specially Serviced Mortgage Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property
or a lien on an ownership interest in the Mortgagor,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall, with the
consent or deemed consent of the Operating Adviser or if applicable, the B Note
holder (subject to the penultimate paragraph of Section 9.39 or any authority of
the Special Servicer to act without such consent), exercise (or, subject to
Section 9.5, waive its right to exercise) any right it may have with respect to
such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold
its consent to the creation of any such additional lien or other encumbrance, in
a manner consistent with the Servicing Standard. Prior to waiving the effect of
such provision with respect to a Mortgage Loan, the Special Servicer shall
obtain Rating Agency Confirmation regarding such waiver; provided, however, that
such Rating Agency Confirmation shall only be required if the
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applicable Mortgage Loan (x) represents 2% or more of the Principal Balance of
all of the Mortgage Loans held by the Trust, has a Principal Balance of more
than $20,000,000 or is one of the 10 largest Mortgage Loans based on Principal
Balance or (y) has a Loan-to-Value Ratio (which includes the indebtedness to be
secured by such additional lien or other encumbrance and any other loans secured
by the related Mortgaged Property or interests in the related Mortgagor) that is
greater than or equal to 85% or a Debt Service Coverage Ratio (which includes
debt service on the indebtedness to be secured by such additional lien or other
encumbrance and any other loans secured by the related Mortgaged Property or
interests in the related Mortgagor) that is less than 1.2x.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Mortgage Loan, the Special Servicer will
immediately notify the applicable Master Servicer. The Special Servicer shall
determine, in accordance with the Servicing Standard, whether an instrument of
satisfaction shall be delivered and, if the Special Servicer determines that
such instrument should be delivered, the Special Servicer shall deliver written
approval of such delivery to the applicable Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the applicable Master Servicer shall notify, in writing,
the Mortgagor under each Specially Serviced Mortgage Loan transferred to the
Special Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to the
applicable Master Servicer to request any documents and instruments in the
possession of such Master Servicer related to any Specially Serviced Mortgage
Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the applicable Master Servicer all documents and
instruments in the possession of the Special Servicer related to such
Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect to
any Rehabilitated Mortgage Loan to such Master Servicer in accordance with the
Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
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SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the Special Servicer in respect of any
Specially Serviced Mortgage Loan or any REO Property or which otherwise are
collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any
REO Property shall be transmitted to the applicable Master Servicer within one
Business Day of receipt to the applicable Certificate Account, except that if
such amounts relate to REO Income, they shall be deposited in the REO Account.
The Special Servicer shall provide access to information and documentation
regarding the Specially Serviced Mortgage Loans to the Trustee, the applicable
Master Servicer, the Fiscal Agent, the Paying Agent, Operating Adviser, the B
Note holder, if applicable, and their respective agents and accountants at any
time upon reasonable written request and during normal business hours, provided
that the Special Servicer shall not be required to take any action or provide
any information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided further that the Trustee and the Paying Agent shall be entitled to
receive from the Special Servicer all such information as the Trustee and the
Paying Agent shall reasonably require to perform their respective duties
hereunder. In fulfilling such a request, the Special Servicer shall not be
responsible for determining whether such information is sufficient for the
Trustee's, the applicable Master Servicer's, the Fiscal Agent's, the Paying
Agent's or the Operating Adviser's, or the B Note holder's, if applicable
purposes.
(b) The Special Servicer hereby acknowledges that the Trust (and/or
the holder of the related B Note, if an A/B Mortgage Loan is involved and/or the
holder of the related Serviced Companion Mortgage Loan, if a Loan Pair is
involved) owns the Specially Serviced Mortgage Loans and all Mortgage Files
representing such Specially Serviced Mortgage Loans and all funds now or
hereafter held by, or under the control of, the Special Servicer that are
collected by the Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which the Special Servicer is entitled hereunder); and the Special
Servicer agrees that all documents or instruments constituting part of the
Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans
which come into the possession or custody of, or which are subject to the
control of, the Special Servicer, shall be held by the Special Servicer for and
on behalf of the Trust (or the holder of the related B Note, if an A/B Mortgage
Loan is involved or the holder of the related Serviced Companion Mortgage Loan,
if a Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not create, incur
or subject any Specially Serviced Mortgage Loans, or any funds that are required
to be deposited in any REO Account to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Specially Serviced
Mortgage Loan or any funds, collected on, or in connection with, a Specially
Serviced Mortgage Loan.
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SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
(a) The Special Servicer hereby represents and warrants to and
covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly existing and
in good standing as a limited liability company under the laws of the
Commonwealth of Massachusetts, and shall be in compliance with the laws of each
State in which any Mortgaged Property (including any REO Property) which is, or
is related to a Specially Serviced Mortgage Loan is located to the extent
necessary to perform its obligations under this Agreement, except where the
failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with the
terms of this Agreement;
(ii) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance by it of this
Agreement and this Agreement has been duly executed and delivered by the Special
Servicer; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee, the Fiscal Agent, the Paying
Agent and the Master Servicers, evidences the valid and binding obligation of
the Special Servicer enforceable against the Special Servicer in accordance with
its terms subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement by the Special
Servicer, the consummation by the Special Servicer of the transactions
contemplated hereby, and the fulfillment of or compliance by the Special
Servicer with the terms and conditions of this Agreement will not (1) result in
a breach of any term or provision of its articles of organization or (2)
conflict with, result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument to which
it is a party or by which it may be bound, or any law, governmental rule,
regulation, or judgment, decree or order applicable to it of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects its ability to perform its
obligations under this Agreement;
(iv) no litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against it, the outcome of which, in the
Special Servicer's reasonable judgment, could reasonably be expected to
materially and adversely affect the execution, delivery or enforceability of
this Agreement or its ability to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms hereof; and
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated
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hereby, or if any such consent, approval, authorization or order is required, it
has obtained the same or will obtain the same prior to the time necessary to
perform its obligations under this Agreement, and, except to the extent in the
case of performance, that its failure to be qualified as a foreign corporation
or licensed in one or more states is not necessary for the performance by it of
its obligations hereunder.
(b) It is understood that the representations and warranties set forth
in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice to the Special Servicer by any of the
Trustee, a Master Servicer, the Paying Agent or the Fiscal Agent. The Special
Servicer shall give prompt notice to the Trustee, the Fiscal Agent, the Paying
Agent, the Depositor, the Operating Adviser, the B Note holder, if applicable,
and the Master Servicers of the occurrence, or the failure to occur, of any
event that, with notice, or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL LIABILITY
INSURANCE POLICIES.
(a) For all REO Properties (other than REO Properties relating to
Non-Serviced Mortgage Loans), the Special Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to maintain with a Qualified Insurer (A)
a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage
Loan documents and the related Mortgage so require, contains no exclusion as to
any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of
2002) which does not provide for reduction due to depreciation in an amount
which is not less than the full replacement cost of the improvements of such REO
Property or in an amount not less than the unpaid Principal Balance plus all
unpaid interest and the cumulative amount of Servicing Advances (plus Advance
Interest) made with respect to such Mortgage Loan, any related B Note and
Serviced Companion Mortgage Loan, whichever is less, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (B)
any other insurance coverage for such REO Property which the related Mortgagor
was required to maintain for the related Mortgaged Property under the related
Mortgage, subject, as to earthquake insurance, to the second sentence following
this sentence. If the improvements to the Mortgaged Property are in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available),
the Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances
(plus Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law or, with respect to insurance other than earthquake
insurance, as set forth in clause (B) of the first sentence of this Section
9.9(a) and, nevertheless, at its sole option and at the Trust's expense, it (if
required at origination and is available at commercially reasonable rates) may
obtain such earthquake insurance. The Special Servicer shall use its reasonable
efforts, consistent with the
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Servicing Standard, to obtain a comprehensive general liability insurance policy
for all REO Properties. The Special Servicer shall, to the extent available at
commercially reasonable rates (as determined by the Special Servicer in
accordance with the Servicing Standard) and to the extent consistent with the
Servicing Standard, use its reasonable efforts to maintain a Rent Loss Policy
covering revenues for a period of at least twelve months and a comprehensive
general liability policy with coverage comparable to prudent lending
requirements in an amount not less than $1 million per occurrence. All
applicable policies required to be maintained by the Special Servicer pursuant
to this Section 9.9(a) shall name the Trustee as loss payee and be endorsed with
a standard mortgagee clause. The costs of such insurance shall be a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance
policies maintained pursuant to this Section 9.9 (other than amounts to be
applied to the restoration or repair of the REO Property) shall be deposited
into the applicable REO Account. Any cost incurred in maintaining the insurance
required hereby for any REO Property shall be a Servicing Advance, subject to
the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available on commercially reasonable terms at a cost customarily
acceptable (in each case, as determined by the Special Servicer, which shall be
entitled to rely, at its sole expense, on insurance consultants in making such
determination, consistent with the Servicing Standard) and consistent with the
Servicing Standard; provided that, the Special Servicer will be required to
maintain insurance against property damages resulting from terrorism or similar
acts if the terms of the related Mortgage Loan documents so require unless the
Special Servicer determines that (i) such insurance is not available at any rate
or (ii) such insurance is not available at commercially reasonable rates and
such hazards are not at the time commonly insured against for properties similar
to the related Mortgaged Property and located in or around the region in which
such related Mortgaged Property is located. The Special Servicer shall notify
the Trustee of any such determination.
(d) The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note serviced by
it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer with a minimum claims
paying ability rating of at least "A" by Fitch, "A" by S&P and "A(low)" by DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations), or otherwise approved by the Rating Agencies or (ii) if the
Special Servicer, provided that the rating of such Person's long-term debt is
not less than "A" by Fitch, "A" by S&P and "A(low)" by DBRS (or, if not rated by
DBRS, an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations), self-insures
for its obligations as set forth in the first paragraph of this Section 9.9. In
the event that the Special Servicer shall cause any Mortgage Loan, Serviced
Companion Mortgage Loan and B Note to be
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covered by such a master force placed or blanket insurance policy, the
incremental cost of such insurance allocable to such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note (i.e., other than any minimum or standby
premium payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Special
Servicer as a Servicing Advance, subject to the provisions of Section 4.4
hereof. If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 9.9 and there shall have been a loss that
would have been covered by such policy, deposit in a Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan, A/B Mortgage Loan or
Serviced Companion Mortgage Loan or (ii) if there is no deductible limitation
required under the Mortgage Loan, A/B Mortgage Loan or Serviced Companion
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related Mortgaged Property
which is consistent with the Servicing Standard, and deliver to the Trustee an
Officer's Certificate describing the calculation of such amount. In connection
with its activities as administrator and servicer of the Mortgage Loans, any
Serviced Companion Mortgage Loan and any B Note, the Special Servicer agrees to
present, on its behalf and on behalf of the Trustee, claims under any such
master force placed or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to a Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special Servicer
shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and
(iii) the Work-Out Fee. Such amounts, if any, collected by the Special Servicer
from the related Mortgagor shall be transferred by the Special Servicer to the
applicable Master Servicer within one Business Day of receipt thereof, and
deposited by the applicable Master Servicer in the applicable Certificate
Account. The Special Servicer shall be entitled to receive a Liquidation Fee
from the Liquidation Proceeds received in connection with a final disposition of
a Specially Serviced Mortgage Loan or REO Property in whole or in part (whether
arising pursuant to a sale, condemnation or otherwise). With respect to each REO
Mortgage Loan that is a successor to a Mortgage Loan secured by two or more
Mortgaged Properties, the reference to "REO Property" in the preceding sentence
shall be construed on a property-by-property basis to refer separately to the
acquired real property that is a successor to each of such Mortgaged Properties,
thereby entitling the Special Servicer to a Liquidation Fee from the Liquidation
Proceeds received in connection with a final disposition of, and Condemnation
Proceeds received in connection with, each such acquired property as the
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Liquidation Proceeds related to that property are received. The Special Servicer
shall also be entitled to additional special servicing compensation of an amount
equal to the excess, if any, of the aggregate Prepayment Interest Excess
relating to Mortgage Loans which are Specially Serviced Mortgage Loans which
have received voluntary Principal Prepayments not from Liquidation Proceeds or
from modifications of Specially Serviced Mortgage Loans for each Distribution
Date over the aggregate Prepayment Interest Shortfalls for such Mortgage Loans
for such Distribution Date. If the Special Servicer resigns or is terminated for
any reason, it shall retain the right to receive any Work-Out Fees payable on
Mortgage Loans that became Rehabilitated Mortgage Loans while it acted as
Special Servicer and remained Rehabilitated Mortgage Loans at the time of such
resignation or termination for so long as such Mortgage Loan remains a
Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the applicable
Master Servicer to withdraw (i) from the applicable Certificate Account, the
Special Servicer Compensation in respect of each Mortgage Loan (but not a B
Note), (ii) from any Serviced Companion Mortgage Loan Custodial Account, the
Special Servicer Compensation to the extent related solely to the related
Serviced Companion Mortgage Loan and (iii) from any A/B Loan Custodial Account,
the Special Servicer Compensation to the extent related solely to the related B
Note, in the time and manner set forth in Section 5.2 of this Agreement. The
Special Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest (net of amounts used to pay Advance Interest) or other usual and
customary charges and fees actually received from the Mortgagor in connection
with any Specially Serviced Mortgage Loan shall be retained by the Special
Servicer, to the extent not required to be deposited in a Certificate Account
pursuant to the terms of this Agreement (other than any such fees payable in
connection with any Non-Serviced Mortgage Loan). The Special Servicer shall be
entitled to, and the applicable Master Servicer shall forward to the Special
Servicer, 50% of any Modification Fees collected with respect to a consent,
waiver, modification or amendment executed or granted by such Master Servicer if
the approval or consent of the Special Servicer was required in connection
therewith. The Special Servicer shall be entitled to retain 100% of any
Modification Fee or extension fee that is actually paid by the related Borrower
in connection with an extension of the maturity date of a Mortgage Loan (that is
not a Specially Serviced Mortgage Loan) approved or consented to by the Special
Servicer in accordance with Section 8.18(a)(ii), unless such approval or consent
of the Special Servicer is to an extension contemplated by the third sentence of
Section 8.18(a)(ii), in which case the Special Servicer shall be entitled to
only 50% of such extension fee and the applicable Master Servicer shall be
entitled to the other 50%. The Special Servicer shall also be permitted to
receive 50% of all assumption fees collected with respect to Mortgage Loans that
are not Specially Serviced Mortgage Loans as provided in Section 8.7(a) and
8.7(b) and 100% of all assumption fees collected with respect to Mortgage Loans
that are Specially Serviced Mortgage Loans as provided in Section 9.5(a) (other
than any such fees payable in connection with any Non-Serviced Mortgage Loan).
To the extent any component of Special Servicer Compensation is in respect of
amounts usually and customarily paid by Mortgagors, the Special Servicer shall
use reasonable
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good faith efforts to collect such amounts from the related Mortgagor, and to
the extent so collected, in full or in part, the Special Servicer shall not be
entitled to compensation for the portion so collected therefor hereunder out of
the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard
and subject to Section 9.4(a) and Section 9.36, shall use its reasonable efforts
to foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments of such Mortgage Loan, the
sale of such Mortgage Loan in accordance with this Agreement or the modification
of such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the applicable Master Servicer make a Servicing
Advance for Liquidation Expenses that would be a Nonrecoverable Advance unless
the Special Servicer determines that such Servicing Advance is in the best
interest of the Certificateholders (and in the case of any A/B Mortgage Loan,
the holder of the related B Note and the Trust as a collective whole and in the
case of any Loan Pair, the holder of the related Serviced Companion Mortgage
Loan and the Trust as a collective whole).
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC Pool will
not cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to, any
Mortgaged Property, if, as a result of any such action the Trust, or any trust
that holds a Serviced Companion Mortgage Loan would be considered to hold title
to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of
such Mortgaged Property within the meaning of CERCLA, or any applicable
comparable federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental Report
prepared by a Person (who may be an employee or affiliate of the applicable
Master Servicer or the Special Servicer) who regularly conducts environmental
site assessments in accordance with the standards of FNMA in the case of
multi-family mortgage loans and customary servicing practices in the case of
commercial loans for environmental assessments, which report shall be delivered
to the Trustee, that:
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(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably likely
to produce a greater recovery on a net present value basis than pursuing a claim
under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions); provided, however, that such compliance pursuant to clause (i)
and (ii) above or the taking of such action pursuant to this clause (iii) shall
only be required to the extent that the cost thereof is a Servicing Advance of
the applicable Master Servicer or the Special Servicer pursuant to this
Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the applicable Master Servicer shall treat such cost as a Servicing
Advance subject to the provisions of Section 4.4 hereof; provided that, in the
latter event, the Special Servicer shall use its good faith reasonable business
efforts to recover such cost from the Mortgagor in connection with the curing of
the default under the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions
(after taking into account the projected costs of such actions) or than not
pursuing a claim under the Environmental Insurance Policy, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair, taken as a collective whole), including, without
limitation, releasing the lien of the related Mortgage. If the Special Servicer
determines that a material possibility exists that Liquidation Expenses with
respect to Mortgaged Property (taking into account the cost of bringing it into
compliance with applicable Environmental Laws) would exceed the Principal
Balance of the related Mortgage Loan, the Special Servicer shall not attempt to
bring such
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Mortgaged Property into compliance and shall not acquire title to such Mortgaged
Property unless it has received the written consent of the Trustee to such
action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage Loan
and the holder of the related Serviced Companion Mortgage Loan if in connection
with a Loan Pair), shall sell the REO Property expeditiously, but in any event
within the time period, and subject to the conditions, set forth in Section
9.15. Subject to Section 9.15, the Special Servicer shall manage, conserve,
protect and operate the REO Property for the holders of beneficial interests in
the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair) solely for the purpose of its prompt disposition
and sale.
SECTION 9.14 OPERATION OF REO PROPERTY
(a) The Special Servicer shall segregate and hold all funds collected
and received in connection with the operation of each REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to each REO Property one or more accounts held in trust for the
benefit of the Certificateholders (and the holder of the related B Note if in
connection with an A/B Mortgage Loan and the holder of the related Serviced
Companion Mortgage Loan if in connection with a Loan Pair) in the name of
"LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc. Commercial Mortgage Pass-Through Certificates Series 2005-HQ6,
the holder of any Serviced Companion Mortgage Loan and the holder of any B Note
as their interests may appear [name of Property Account]" (each, an "REO
Account"), which shall be an Eligible Account. Amounts in any REO Account shall
be invested in Eligible Investments. The Special Servicer shall deposit all
funds received with respect to an REO Property in the applicable REO Account
within two days of receipt. The Special Servicer shall account separately for
funds received or expended with respect to each REO Property. All funds in each
REO Account may be invested only in Eligible Investments. The Special Servicer
shall notify the Trustee and the applicable Master Servicer in writing of the
location and account number of each REO Account and shall notify the Trustee
prior to any subsequent change thereof.
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(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in a Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
applicable Master Servicer of all such deposits (and the REO Properties to which
the deposits relate) made into a Certificate Account and (ii) the Special
Servicer shall be entitled to withdraw from the REO Account and pay itself as
additional Special Servicing Compensation any interest or net reinvestment
income earned on funds deposited in the REO Account. The amount of any losses
incurred in respect of any such investments shall be for the account of the
Special Servicer which shall deposit the amount of such loss (to the extent not
offset by income from other investments) in the REO Account, out of its own
funds immediately as realized. If the Special Servicer deposits in any REO
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the REO Account, any provision herein to the contrary
notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Adviser,
and subject to the specific requirements and prohibitions of this Agreement and
any applicable consultation rights of the holder of the related B Note relating
to an A/B Mortgage Loan, to do any and all things in connection therewith as are
consistent with the Servicing Standard, subject to the REMIC Provisions, and in
such manner as the Special Servicer deems to be in the best interest of the
Trust (and in the case of any A/B Mortgage Loan, the holder of the related B
Note and the Trust as a collective whole and in the case of any Loan Pair, the
holder of the related Serviced Companion Mortgage Loan and the Trust as a
collective whole), and, consistent therewith, may advance from its own funds to
pay for the following items (which amounts shall be reimbursed by the applicable
Master Servicer or the Trust subject to Sections 4.4 in accordance with Section
4.6(e)), to the extent such amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that could result or have resulted in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
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(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any
such contract or to actions taken through any such Independent Contractor shall
be deemed to relieve the Special Servicer of any of its duties and obligations
to the Trustee with respect to the operation and management of any such REO
Property;
(v) if the Independent Contractor is an Affiliate of the Special
Servicer, the consent of the Operating Adviser and a Nondisqualification Opinion
must be obtained; and
(vi) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for the Trust (or, if
applicable, the holder of a B Note or a Serviced Companion Mortgage Loan)
pursuant to this subsection (d) for indemnification of the Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of a
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced by the applicable
Master Servicer or the Special Servicer as a Servicing Advance, subject to the
provisions of Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property which might cause
the REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code (without giving effect to the final sentence
thereof) or result in the receipt by any REMIC of any "income from nonpermitted
assets" within the meaning of Section 860F(a)(2) of the Code or any "net income
from foreclosure property" which is subject to tax under the REMIC Provisions
unless (i) the Trustee and the Special Servicer have received an Opinion of
Counsel (at the Trust's sole expense) to the effect that, under the REMIC
Provisions and any relevant proposed legislation, any income generated for REMIC
I by the REO Property would not result in the imposition of a
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tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special
Servicer determines the income or earnings with respect to such REO Property
will offset any tax under the REMIC Provisions relating to such income or
earnings and will maximize the net recovery from the REO Property to the
Certificateholders (and, if applicable, the holder of a B Note or a Serviced
Companion Mortgage Loan), as a collective whole. The Special Servicer shall
notify the Trustee, the Paying Agent and the applicable Master Servicer of any
election by it to incur such tax, and the Special Servicer (i) shall hold in
escrow in an Eligible Account an amount equal to the tax payable thereby from
revenues collected from the related REO Property, (ii) provide the Paying Agent
with all information for the Paying Agent to file the necessary tax returns in
connection therewith and (iii) upon request from the Paying Agent, pay from such
account to the Paying Agent the amount of the applicable tax. The Paying Agent
shall file the applicable tax returns based on the information supplied by the
Special Servicer and pay the applicable tax from the amounts collected by the
Special Servicer.
Subject to, and without limiting the generality of the foregoing, the
Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New Lease
with respect to the REO Property, if the New Lease by its terms will give rise
to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, or if
applicable, the B Note holder, shall use its reasonable efforts consistent with
the Servicing Standard to sell any REO Property as soon as practicable
consistent with the objective
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of maximizing proceeds for all Certificateholders (and with respect to a
Serviced Companion Mortgage Loan or a B Note, for the holders of such loans, as
a collective whole), but in no event later than the end of the third calendar
year following the end of the year of its acquisition, and in any event prior to
the Rated Final Distribution Date or earlier to the extent necessary to comply
with REMIC provisions, unless (i) the Trustee, on behalf of the applicable REMIC
Pool, has been granted an extension of time (an "Extension") (which extension
shall be applied for at least 60 days prior to the expiration of the period
specified above) by the Internal Revenue Service to sell such REO Property (a
copy of which shall be delivered to the Paying Agent upon request), in which
case the Special Servicer shall continue to attempt to sell the REO Property for
its fair market value for such period longer than the period specified above as
such Extension permits or (ii) the Special Servicer seeks and subsequently
receives, at the expense of the Trust, a Nondisqualification Opinion, addressed
to the Trustee and the Special Servicer, to the effect that the holding by the
Trust of such REO Property subsequent to the period specified above after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause
any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates
are outstanding. If the Trustee has not received an Extension or such Opinion of
Counsel and the Special Servicer is not able to sell such REO Property within
the period specified above, or if an Extension has been granted and the Special
Servicer is unable to sell such REO Property within the extended time period,
the Special Servicer shall, after consultation with the Operating Adviser, or if
applicable, the B Note holder, before the end of such period or extended period,
as the case may be, auction the REO Property to the highest bidder (which may be
the Special Servicer) in accordance with the Servicing Standard; provided,
however, that no Interested Person shall be permitted to purchase the REO
Property at a price less than the Purchase Price; and provided, further that if
the Special Servicer intends to bid on any REO Property, (i) the Special
Servicer shall notify the Trustee of such intent, (ii) the Trustee shall
promptly obtain, at the expense of the Trust an Appraisal of such REO Property
(or internal valuation in accordance with the procedures specified in Section
6.9) and (iii) the Special Servicer shall not bid less than the fair market
value set forth in such Appraisal. Neither any Seller nor the Depositor may
purchase REO Property at a price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent and the applicable
Master Servicer (and the holder of the related B Note, if any, if in connection
with an A/B Mortgage Loan and the holder of the related Serviced Companion
Mortgage Loan, if in connection with a Loan Pair) a statement of accounting for
such REO Property, including without limitation, (i) the Acquisition Date for
the REO Property, (ii) the date of disposition of the REO Property, (iii) the
sale price and related selling and other expenses, (iv) accrued interest
(including interest deemed to have accrued) on the Specially Serviced Mortgage
Loan to which the REO Property related, calculated from the Acquisition Date to
the disposition date, (v) final property operating statements, and (vi) such
other information as the Trustee or the Paying Agent (and the holder of the
related B Note, if any, if in connection with an A/B Mortgage Loan and the
holder of the related Serviced Companion Mortgage Loan, if in connection with a
Loan Pair) may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in a Certificate Account within one Business Day of
receipt.
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SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with
the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property, the
Special Servicer shall consult with counsel to determine how best to enforce
such rights in a manner consistent with the REMIC Provisions and shall not,
based on a Nondisqualification Opinion addressed to the Special Servicer and the
Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of any REMIC Pool to qualify as a REMIC while
any Certificates are outstanding, unless such action has been approved by a vote
of 100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 RESERVED
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Special Servicer shall deliver to the Paying Agent and each Master Servicer on
or before noon (Eastern Time) on March 15 of each calendar year (or March 14 if
a leap year), commencing in March 2006, an Officer's Certificate stating, as to
the signer thereof, that (A) a review of the activities of the Special Servicer
during the preceding calendar year or portion thereof and of the performance of
the Special Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Special Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Special Servicer
shall deliver such Officer's Certificate to the Depositor and the Trustee by
April 7 of each calendar year. The Special Servicer shall forward a copy of each
such statement to the Rating Agencies. The Paying Agent shall forward a copy of
each such statement to the Luxembourg Paying Agent. Promptly after receipt of
such Officer's Certificate, the Depositor shall review the Officer's Certificate
and, if applicable, consult with the Special Servicer as to the nature of any
defaults by the Special Servicer in the fulfillment of any of the Special
Servicer's obligations hereunder.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before noon (Eastern Time) on March 15 of each calendar year (or March 14 if a
leap year), beginning with March 2006, the Special Servicer at its expense shall
cause a nationally recognized firm of Independent public accountants (who may
also render other services to the Special Servicer, as applicable) to furnish to
the Paying Agent and the applicable Master Servicer (in electronic format) a
statement to the effect that (a) such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
the servicing of mortgage loans similar to the Mortgage Loans under
substantially similar agreements for the preceding calendar year and (b) the
assertion by management of the Special Servicer, that it maintained an effective
internal control system over the servicing of such mortgage loans is fairly
stated in all material respects, based upon established criteria, which
statement meets the standards applicable to accountant's reports intended for
general distribution; provided that each of the applicable Master Servicer and
the Special Servicer shall not be required to cause the delivery of such
statement until April 15 in any given year so long as it has received written
confirmation from the Depositor that a Report on Form 10-K is not required to be
filed in respect of the Trust Fund for the preceding calendar year. The Special
Servicer shall deliver such statement to the Depositor, each Rating Agency, the
Trustee, and, upon request, the Operating Adviser by April 7 of each calendar
year (or by April 30 of each
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calendar year if the statement is not required to be delivered until April 15).
The Paying Agent shall promptly deliver such statement to the Luxembourg Paying
Agent. Promptly after receipt of such report, the Depositor shall review the
report and, if applicable, consult with the Special Servicer as to the nature of
any defaults by the Special Servicer in the fulfillment of any of the Special
Servicer's obligations hereunder.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Special
Servicer shall be a party, or any Person succeeding to the business of the
Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation (including with respect to any securities
rated by a Rating Agency evidencing interests in any Serviced Companion Mortgage
Loan or B Note). If the conditions to the proviso in the foregoing sentence are
not met, the Trustee may terminate the Special Servicer's servicing of the
Specially Serviced Mortgage Loans pursuant hereto, such termination to be
effected in the manner set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to each Master
Servicer, the Operating Adviser and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation (including with
respect to any securities rated by a Rating Agency evidencing interests in any
Serviced Companion Mortgage Loan or B Note) shall have been obtained. Notice of
such resignation shall be given promptly by the Special Servicer to each Master
Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
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(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
(d) Upon any resignation of the Special Servicer, it shall retain the
right to receive any and all Work-Out Fees payable in respect of Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note that became Rehabilitated
Mortgage Loans during the period that it acted as Special Servicer and that were
still Rehabilitated Mortgage Loans at the time of such resignation (and the
successor Special Servicer shall not be entitled to any portion of such Work-Out
Fees), in each case until such time (if any) as such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note again becomes a Specially Serviced Mortgage
Loan or are no longer included in the Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
The Special Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in
Section 9.3) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Special Servicer hereunder or (B) assign and
delegate all of its duties hereunder. In the case of any such assignment and
delegation in accordance with the requirements of clause (A) of this Section,
the Special Servicer shall not be released from its obligations under this
Agreement. In the case of any such assignment and delegation in accordance with
the requirements of clause (B) of this Section, the Special Servicer shall be
released from its obligations under this Agreement, except that the Special
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Special Servicer hereunder prior to the satisfaction of the following
conditions: (i) the Special Servicer gives the Depositor, each Master Servicer
and the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Special Servicer, with like effect as if
originally named as a party to this Agreement; (iii) the purchaser or transferee
has assets in excess of $15,000,000; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld.
Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in
accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders, the holder of any B Note, the holder of any Serviced
Companion Mortgage Loan or the Trustee for any action taken or for refraining
from the taking of any action in good faith and using reasonable business
judgment; provided that this provision shall not protect the Special Servicer or
any such person against any breach of a representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance
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of duties hereunder or by reason of negligent disregard of obligations and
duties hereunder. The Special Servicer and any director, officer, employee or
agent of the Special Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person (including, without
limitation, the information and reports delivered by or at the direction of the
Servicer Report Administrator or any Master Servicer or any director, officer,
employee or agent of Servicer Report Administrator or any Master Servicer)
respecting any matters arising hereunder. The Special Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which is
not incidental to its duties to service the Specially Serviced Mortgage Loans in
accordance with this Agreement; provided that the Special Servicer may in its
sole discretion undertake any such action which it may reasonably deem necessary
or desirable in order to protect the interests of the Certificateholders, the
holder of any B Note, the holder of any Serviced Companion Mortgage Loan and the
Trustee in the Specially Serviced Mortgage Loans, or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action (other than those that are connected with the routine
performance by the Special Servicer of its duties hereunder) shall be expenses
and costs of the Trust, and the Special Servicer shall be entitled to be
reimbursed therefor as a Servicing Advance, together with interest thereon, as
provided by Section 5.2 hereof. Notwithstanding any term in this Agreement, the
Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be liable for any error of judgment made in
good faith by any officer, unless it shall be proved that the Special Servicer
or such officer was negligent in ascertaining the pertinent facts. Neither the
Special Servicer, nor any director, officer, employee, agent or Affiliate, shall
be liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement. The Special Servicer shall be entitled to
rely on reports and information supplied to it by Servicer Report Administrator,
the Master Servicers and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicers, the Fiscal Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Special Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such amounts are not recoverable from the party committing such
breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal,
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bond or other paper or document believed or in good faith believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine.
(e) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified by the Master Servicers, the
Trustee, the Paying Agent and the Fiscal Agent, as the case may be, and held
harmless against any loss, liability or expense including reasonable attorneys'
fees incurred in connection with any legal action relating to a Master
Servicer's, the Trustee's, the Paying Agent's or the Fiscal Agent's, as the case
may be, respective willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or by reason of negligent
disregard by such Person of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Special Servicer's duties
hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
applicable Master Servicer, the Trustee, the Paying Agent and the Fiscal Agent
if a claim is made by a third party entitling the Special Servicer to
indemnification hereunder, whereupon the applicable Master Servicer, the Trustee
or the Paying Agent, in each case, to the extent the claim was made in
connection with its willful misfeasance, bad faith or negligence, shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Special Servicer). Any failure to so notify the applicable Master Servicer, the
Trustee or the Paying Agent shall not affect any rights the Special Servicer may
have to indemnification hereunder or otherwise, unless the interest of the
applicable Master Servicer, the Trustee or the Paying Agent is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the Special
Servicer. Such indemnity shall survive the termination of this Agreement or the
resignation or removal of the Special Servicer hereunder. Any payment hereunder
made by the applicable Master Servicer, the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, pursuant to this paragraph to the Special
Servicer shall be paid from the applicable Master Servicer's, the Trustee's,
Fiscal Agent's or the Paying Agent's, as the case may be, own funds, without
reimbursement from the Trust therefor, except achieved through subrogation as
provided in this Agreement. Any expenses incurred or indemnification payments
made by the Trustee, the Paying Agent, the Fiscal Agent or the applicable Master
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final judgment that the conduct of the Trustee, the Paying
Agent, the Fiscal Agent or the applicable Master Servicer, as the case may be,
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was (x) not culpable or (y) found to not have acted with willful misfeasance,
bad faith or negligence.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or agent
of the Special Servicer (the "Special Servicer Indemnified Parties") shall be
indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes against any and all claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments and any other costs, liabilities, fees and
expenses (collectively, "Special Servicer Losses") incurred in connection with
any legal action relating to this Agreement, any Mortgage Loans, any Serviced
Companion Mortgage Loans, any B Notes, any REO Property or the Certificates or
any exercise of any right under this Agreement reasonably requiring the use of
counsel or the incurring of expenses other than any loss, liability or expense
incurred by reason of the Special Servicer's willful misfeasance, bad faith or
negligence in the performance of duties hereunder. If such loss, liability or
expense relates to an A/B Mortgage Loan but does not relate to the related A
Note and does not relate primarily to the administration of the Trust or any
REMIC formed hereunder or to any determination respecting the amount, payment or
avoidance of any tax under the REMIC provisions of the Code or the actual
payment of any REMIC tax or expense, then such indemnification shall be paid
first out of collections on, and other proceeds of, the related B Note and then
out of collections on, and other proceeds of, the Mortgage Loans.
Notwithstanding the foregoing, if such loss, liability or expense relates solely
to a particular Serviced Pari Passu Mortgage Loan (or another Mortgage Loan
included in the Trust) or a particular Serviced Companion Mortgage Loan and not
any B Note, then such indemnification shall be paid first out of collections on,
and other proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage
Loan or Serviced Companion Mortgage Loan, as applicable, and then out of
collections on, and other proceeds of, the Mortgage Loans (and not out of
proceeds of any related B Note).
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Fiscal Agent, the Depositor, the Master Servicers, the Paying Agent
and any director, officer, employee or agent or Controlling Person of the
Trustee, the Fiscal Agent, the Depositor and the Master Servicers, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trust or the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the Master Servicers may sustain arising from or as a result of
the willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the Depositor,
the Paying Agent or the applicable Master Servicer shall immediately notify the
Special Servicer if a claim is made by a third party with respect to this
Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the
Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the applicable
Master Servicer, as the case may be, to indemnification hereunder, whereupon the
Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the applicable Master Servicer, as the case may be) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Special
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Servicer shall not affect any rights the Trust or the Trustee, the Fiscal Agent,
the Depositor, the Paying Agent or the applicable Master Servicer may have to
indemnification under this Agreement or otherwise, unless the Special Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the Special Servicer, the Paying Agent, the
Trustee or Fiscal Agent. Any expenses incurred or indemnification payments made
by the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Special Servicer was not culpable or found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor expressly agree
that the only information furnished by or on behalf of the Special Servicer for
inclusion in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement is the information set forth in the paragraph under the caption
"SERVICING OF THE MORTGAGE LOANS - The Master Servicer and Special
Servicer--Special Servicer" of the Preliminary Prospectus Supplement and Final
Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Special Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Special Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 9.25 RESERVED
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall provide the
necessary information to each Master Servicer to allow the Master Servicers to
comply with the Mortgagor tax reporting requirements imposed by Sections 6050H,
6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan
and any REO Property and shall deliver such information with respect thereto in
a format reasonably acceptable to the Special Servicer and a Master Servicer or
the Paying Agent, as applicable. The Special Servicer shall provide to the
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applicable Master Servicer copies of any such reports. The applicable Master
Servicer shall forward such reports to the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that the
applicable Master Servicer will be collecting all payments with respect to the
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note (other than
payments with respect to REO Income). If, however, the Special Servicer should
receive any payments with respect to any Mortgage Loan (other than REO Income)
it shall, within one Business Day of receipt from the Mortgagor or otherwise of
any amounts attributable to payments with respect to or the sale of any Mortgage
Loan or any Specially Serviced Mortgage Loan, if any, (but not including REO
Income, which shall be deposited in the applicable REO Account as provided in
Section 9.14 hereof), either, (i) forward such payment (endorsed, if applicable,
to the order of the applicable Master Servicer), to the applicable Master
Servicer, or (ii) deposit such amounts, or cause such amounts to be deposited,
in a Certificate Account. The Special Servicer shall notify the applicable
Master Servicer of each such amount received on or before the date required for
the making of such deposit or transfer, as the case may be, indicating the
Mortgage Loan or Specially Serviced Mortgage Loan to which the amount is to be
applied and the type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS. The Special Servicer shall act in accordance with this Agreement and
the REMIC Provisions and related provisions of the Code in order to create or
maintain the status of any REMIC Pool as a REMIC or, as appropriate, adopt a
plan of complete liquidation. The Special Servicer shall not (A) take any action
or cause any REMIC Pool to take any action that could (i) endanger the status of
any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) or (B) take any action or
cause the Excess Interest Grantor Trust to take any action that could (i)
endanger its status as a grantor trust or (ii) result in the imposition of any
tax upon the Excess Interest Grantor Trust, unless each Master Servicer and the
Trustee have received a Nondisqualification Opinion (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Special
Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the applicable Master Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders), (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written notice
to the Special Servicer that the Special Servicer is terminated pursuant to
Section 9.30(b) or 9.30(c), respectively, and (iii) the effective date of any
resignation of the Special Servicer effected
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pursuant to and in accordance with Section 9.21. The obligations and
responsibilities of the Special Servicer created hereby with respect to any Loan
Pair (other than the obligation of the Special Servicer to make payments to the
applicable Master Servicer as set forth in Section 9.28, the obligations of the
Special Servicer pursuant to Sections 9.8 and 9.24 hereof and obligations under
this Agreement that survive termination) shall terminate on the date that is 60
days following the date on which the Trustee has given written notice to the
Special Servicer that this Agreement is terminated with respect to the Special
Servicer's obligations with respect to such Loan Pair pursuant to Section
9.30(d).
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount required to be remitted
to the Trustee, any Master Servicer, the Fiscal Agent, the Paying Agent or the
Depositor within one (1) Business Day following the date such amount was
required to have been remitted under the terms of this Agreement, (ii) the
Special Servicer has failed to deposit into any account any amount required to
be so deposited or remitted under the terms of this Agreement which failure
continues unremedied for one Business Day following the date on which such
deposit or remittance was first required to be made; (iii) the Special Servicer
has failed to duly observe or perform in any material respect any of the other
covenants or agreements of the Special Servicer set forth in this Agreement, and
the Special Servicer has failed to remedy such failure within thirty (30) days
after written notice of such failure, requiring the same to be remedied, shall
have been given to the Special Servicer by the Depositor or the Trustee;
provided, however, that if the Special Servicer certifies to the Trustee and the
Depositor that the Special Servicer is in good faith attempting to remedy such
failure, and the Certificateholders would not be materially and adversely
affected thereby, such cure period will be extended to the extent necessary to
permit the Special Servicer to cure such failure; provided, however, that such
cure period may not exceed 90 days; (iv) the Special Servicer has made one or
more false or misleading representations or warranties herein that materially
and adversely affects the interest of any Class of Certificates, and has failed
to cure such breach within thirty (30) days after notice of such breach,
requiring the same to be remedied, shall have been given to the Special Servicer
by the Depositor or the Trustee, provided, however, that if the Special Servicer
certifies to the Trustee and the Depositor that the Special Servicer is in good
faith attempting to remedy such failure, such cure period may be extended to the
extent necessary to permit the Special Servicer to cure such failure; provided,
however, that such cure period may not exceed 90 days; (v) the Special Servicer
is no longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Special Servicer and is not reinstated within 60 days and the ratings then
assigned by S&P to any Classes of Certificates are downgraded, qualified or
withdrawn (including, without limitation, being placed on "negative credit
watch") in connection with such removal; (vi) a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; (vii) the
Special Servicer shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings relating to the Special Servicer or of or relating to all or
substantially all of its property; (viii) the Special Servicer thereof shall
admit in writing its inability to pay its debts
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generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(ix) a Special Servicing Officer receives actual knowledge that each of Fitch
and DBRS have (i) qualified, downgraded or withdrawn its rating or ratings of
one or more Classes of Certificates or (ii) placed one or more Classes of
Certificates on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been withdrawn by
each of Fitch or DBRS within 60 days of the date that a Special Servicing
Officer obtained such actual knowledge), and, in the case of either of clauses
(i) or (ii), citing servicing concerns with the Special Servicer as the sole or
material factor in such rating action. Such termination shall be effective on
the date that the Trustee specifies in a written notice to the Special Servicer
that the Special Servicer is terminated due to the occurrence of one of the
foregoing events and the expiration of any applicable cure period or grace
period specified above for such event. The Operating Adviser shall have the
right to appoint a successor if the Trustee terminates the Special Servicer.
(c) The Operating Adviser shall have the right to direct the Trustee
to terminate the Special Servicer, with or without cause, provided that the
Operating Adviser shall appoint a successor Special Servicer who will (i) be
reasonably satisfactory to the Trustee and to the Depositor, and (ii) execute
and deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, whereby the successor Special Servicer agrees to
assume and perform punctually the duties of the Special Servicer specified in
this Agreement; and provided, further, that the Trustee shall have received
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing interests in any Serviced Companion Mortgage Loan or B
Note) from each Rating Agency prior to the termination of the Special Servicer.
The Special Servicer shall not be terminated pursuant to this subsection (c)
until a successor Special Servicer shall have been appointed. The Operating
Adviser shall pay any costs and expenses incurred by the Trust in connection
with the removal and appointment of a Special Servicer (unless such removal is
based on any of the events or circumstances set forth in Section 9.30(b)).
(d) Notwithstanding the other provisions of this Section 9.30, (A) if
any Event of Default on the part of the Special Servicer occurs that affects a
Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by each of Fitch and DBRS, if the Trustee shall receive notice from each
of Fitch and DBRS to the effect that the continuation of the Special Servicer in
such capacity would result in the downgrade, qualification or withdrawal of any
rating then assigned by Fitch to any class of certificates issued in such
securitization, and in either case, the Special Servicer is not otherwise
terminated in accordance with this Section 9.30, then the holder of the affected
Serviced Companion Mortgage Loan may require the Trustee to terminate the duties
and obligations of the Special Servicer with respect to the subject Loan Pair
only, but as to no other Mortgage Loan; and, in such event, subject to the
applicable consultation rights of any particular related Serviced Companion
Mortgage Loan under the related Loan Pair Intercreditor Agreement, the Operating
Adviser shall appoint (or, in the event of the failure of the Operating Adviser
to so appoint, the Trustee shall appoint), within 30 days of such Serviced
Companion Mortgage Loan holder's request, a replacement special servicer with
respect to the related Loan Pair. Any appointment of a replacement special
servicer with respect to a Loan Pair at the
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request of a related Serviced Companion Mortgage Loan holder under this Section
9.30(d) shall be conditioned upon such Serviced Companion Mortgage Loan holder
obtaining a Rating Agency Confirmation (such Rating Agency Confirmation to be an
expense of the requesting Serviced Companion Mortgage Loan holder). Any
replacement special servicer appointed at the request of a Serviced Companion
Mortgage Loan holder in accordance with this Section 9.30(d) shall be
responsible for all duties, and shall be entitled to all compensation, of the
Special Servicer under this Agreement with respect to the subject Loan Pair. If
a replacement special servicer is appointed with respect to a Loan Pair at the
request of a Serviced Companion Mortgage Loan holder in accordance with this
Section 9.30(d) (any such replacement special servicer, a "Loan Pair-Specific
Special Servicer"), such that there are multiple parties acting as Special
Servicer hereunder, then, unless the context clearly requires otherwise: (i)
when used in the context of imposing duties and obligations on the Special
Servicer hereunder or the performance of such duties and obligations, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer,
insofar as such duties and obligations relate to a Loan Pair as to which a Loan
Pair-Specific Special Servicer has been appointed, and shall mean the General
Special Servicer, in all other cases (provided that, in Section 9.18 and Section
9.19, the term "Special Servicer" shall mean each Loan Pair-Specific Special
Servicer and the General Special Servicer); (ii) when used in the context of
identifying the recipient of any information, funds, documents, instruments
and/or other items, the term "Special Servicer" shall mean the related Loan
Pair-Specific Special Servicer, insofar as such information, funds, documents,
instruments and/or other items relate to a Loan Pair as to which a Loan
Pair-Specific Special Servicer has been appointed in accordance with this
Section 9.30(d), and shall mean the General Special Servicer, in all other
cases; (iii) when used in the context of granting the Special Servicer the right
to purchase Specially Serviced Mortgage Loans pursuant to Section 9.36, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer,
if such Specially Serviced Mortgage Loan is part of a Loan Pair as to which a
Loan Pair-Specific Special Servicer has been appointed in accordance with this
Section 9.30(d), and shall mean the General Special Servicer, in all other
cases; (iv) when used in the context of granting the Special Servicer the right
to purchase all of the Mortgage Loans and any REO Properties remaining in the
Trust pursuant to Section 10.1(b), the term "Special Servicer" shall mean the
General Special Servicer only; (v) when used in the context of granting the
Special Servicer any protections, limitations on liability, immunities and/or
indemnities hereunder, the term "Special Servicer" shall mean each Loan
Pair-Specific Special Servicer and the General Special Servicer; and (vi) when
used in the context of requiring indemnification from, imposing liability on, or
exercising any remedies against, the Special Servicer for any breach of a
representation or warranty hereunder or for any negligence, bad faith or willful
misconduct in the performance of duties and obligations hereunder or any
negligent disregard of such duties and obligations or otherwise holding the
Special Servicer responsible for any of the foregoing, the term "Special
Servicer" shall mean the related Loan Pair-Specific Special Servicer or the
General Special Servicer, as applicable. References in this Section 9.30(d) to
"General Special Servicer" means the Person performing the duties and
obligations of Special Servicer with respect to the Mortgage Loans (exclusive of
each and every Loan Pair as to which a Loan Pair-Specific Special Servicer has
been appointed).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given
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promptly by the Special Servicer to the Trustee and the Paying Agent no later
than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month in
which the final Distribution Date will occur. Upon any such termination, the
rights and duties of the Special Servicer (other than the rights and duties of
the Special Servicer pursuant to Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall
terminate and the Special Servicer shall transfer to the applicable Master
Servicer the amounts remaining in each REO Account and shall thereafter
terminate each REO Account and any other account or fund maintained with respect
to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided, that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded the Special Servicer as successor Special Servicer, notified the
Special Servicer of such designation, and such successor Special Servicer shall
have assumed the Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed the Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination.
The Special Servicer agrees to cooperate with the Trustee and the Fiscal Agent
in effecting the termination of the Special Servicer's responsibilities and
rights hereunder as Special Servicer including, without limitation, providing
the Trustee all documents and records in electronic or other form reasonably
requested by it to enable the successor Special Servicer designated by the
Trustee to assume the Special Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Special Servicer in any REO
Account and any other account or fund maintained or thereafter received with
respect to the Specially Serviced Mortgage Loans. On the date specified in a
written notice of termination given to the Special Servicer pursuant to the
second sentence of Section 9.30(a), all authority, power and rights of the
Special Servicer under this Agreement with respect to the applicable Serviced
Pari Passu Mortgage Loan, whether such Mortgage Loan is a Specially Serviced
Mortgage Loan or otherwise, shall terminate. The Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the Special Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination.
(c) If the Special Servicer receives a written notice of termination
pursuant to clause (ii) of Section 9.30(a) relating solely to an event set forth
in Section 9.30(b)(v) or (ix), and if the Special Servicer provides the Trustee
with the appropriate "request for proposal" materials within five Business Days
after receipt of such written notice of termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
Special Servicer) solicit good faith bids for the rights to be appointed as
Special Servicer under this Agreement from at least three but no more than five
Qualified Bidders or, if three Qualified
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Bidders cannot be located, then from as many persons as the Trustee can
determine are Qualified Bidders. At the Trustee's request, the Special Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids. In no event shall the Trustee be responsible if less than three Qualified
Bidders submit bids for the right to service the Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Special Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement and there must be delivered a
Rating Agency Confirmation (including with respect to any securities evidencing
interests in the Serviced Companion Mortgage Loans) in connection with such
appointment. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Special Servicer pursuant to the terms hereof not later
than 30 days after the termination of the Special Servicer hereunder, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Special Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Special within 30 days after the termination of the Special Servicer
hereunder or no Successful Bidder was identified within such 30-day period, the
Trustee shall have no further obligations under Section 9.31(c) and may act or
may select another successor to act as Special Servicer hereunder in accordance
with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the applicable Master Servicer one (1) Business Day after the
Determination Date for each month, the CMSA Special Servicer Loan File in such
electronic format as is mutually acceptable to the applicable Master Servicer
and the Special Servicer and in CMSA format. The applicable Master Servicer may
use such reports or information contained therein to prepare its reports and
such Master Servicer may, at its option, forward such reports directly to the
Depositor and the Rating Agencies.
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(b) The Special Servicer shall maintain accurate records, prepared by
a Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser, the Paying Agent and the applicable Master
Servicer no later than the tenth Business Day following such Final Recovery
Determination.
(c) The Special Servicer shall provide to the applicable Master
Servicer or the Paying Agent at the reasonable request in writing of the
applicable Master Servicer or the Paying Agent, any information in its
possession with respect to the Specially Serviced Mortgage Loans which the
applicable Master Servicer or Paying Agent, as the case may be, shall require in
order for such Master Servicer or the Paying Agent to comply with its
obligations under this Agreement; provided that the Special Servicer shall not
be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder. The applicable Master Servicer shall
provide the Special Servicer at the request of the Special Servicer any
information in its possession with respect to the Mortgage Loans which the
Special Servicer shall require in order for the Special Servicer to comply with
its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the Special Servicer shall forward to the applicable Master Servicer a
statement setting forth the status of each REO Account as of the close of
business on such Special Servicer Remittance Date, stating that all remittances
required to be made by it as required by this Agreement to be made by the
Special Servicer have been made (or, if any required distribution has not been
made by the Special Servicer, specifying the nature and status thereof) and
showing, for the period from the day following the preceding Special Servicer
Remittance Date to such Special Servicer Remittance Date, the aggregate of
deposits into and withdrawals from each REO Account for each category of deposit
specified in Section 5.1 of this Agreement and each category of withdrawal
specified in Section 5.2 of this Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain and,
to the extent obtained, to deliver to the applicable Master Servicer, the Paying
Agent, the Rating Agencies and the Operating Adviser (and the B Note holder,
with respect to the A/B Mortgage Loan), on or before April 15 of each year,
commencing with April 15, 2006, (i) copies of the prior year operating
statements and quarterly statements, if available, for each Mortgaged Property
underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal
year end, provided that either the related Mortgage Note or Mortgage requires
the Mortgagor to provide such information, or if the related Mortgage Loan has
become an REO Property, (ii) a copy of the most recent rent roll available for
each Mortgaged Property, and (iii) a table, setting forth the Debt Service
Coverage Ratio and occupancy with respect to each Mortgaged Property covered by
the operating statements delivered above; provided, that, with respect to any
Mortgage Loan that becomes a Specially Serviced Mortgage Loan prior to April 15,
2006 and for which the items in clause (i) and (ii) above have not been
delivered, the Special Servicer shall use reasonable efforts to obtain and, to
the extent obtained, deliver such items to the applicable Master Servicer, the
Paying Agent, the Rating Agencies and the Operating Adviser (and the B Note
holder with respect to the A/B mortgage Loan) as soon as possible after receipt
of such items.
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(f) The Special Servicer shall deliver to the applicable Master
Servicer, the Depositor, the Paying Agent and the Trustee all such other
information with respect to the Specially Serviced Mortgage Loans at such times
and to such extent as such Master Servicer, the Trustee, the Paying Agent or the
Depositor may from time to time reasonably request; provided, however, that the
Special Servicer shall not be required to produce any ad hoc non-standard
written reports with respect to such Mortgage Loans except if any Person (other
than the Paying Agent or the Trustee) requesting such report pays a reasonable
fee to be determined by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection Report of
each Specially Serviced Mortgage Loan in accordance with Section 9.4(b) to the
Operating Adviser (and the B Note holder with respect to the A/B mortgage Loan).
(h) The Special Servicer shall prepare a report (the "Asset Status
Report") recommending the taking of certain actions for each Mortgage Loan that
becomes a Specially Serviced Mortgage Loan and deliver such Asset Status Report
to the Operating Adviser and the applicable Master Servicer not later than 45
days after the servicing of such Mortgage Loan is transferred to the Special
Servicer. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by reason
of any Phase I Environmental Assessment and any additional environmental testing
contemplated by Section 9.12(c)), consistent with the Servicing Standard, that
are applicable to the exercise of remedies set forth herein and to the
enforcement of any related guaranties or other collateral for the related
Specially Serviced Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer's recommended
action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or
Mortgaged Properties, together with the assumptions used in the calculation
thereof (which the Special Servicer may satisfy by providing a copy of the most
recently obtained Appraisal); and
(vi) such other information as the applicable Special Servicer
deems relevant in light of the Servicing Standard.
If (i) the Operating Adviser affirmatively approves in writing an
Asset Status Report, (ii) after ten Business Days from receipt of an Asset
Status Report the Operating Adviser does not object to such Asset Status Report
or (iii) within ten (10) Business Days after receipt of an Asset Status Report
the Operating Adviser objects to such Asset Status Report and the Special
Servicer makes a determination in accordance with the Servicing Standard that
such objection is
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not in the best interest of all the Certificateholders, as a collective whole,
the Special Servicer shall take the recommended actions described in the Asset
Status Report. If within ten (10) Business Days after receipt of an Asset Status
Report the Operating Adviser objects to such Asset Status Report and the Special
Servicer does not make a determination in accordance with the Servicing Standard
that such objection is not in the best interest of all the Certificateholders,
as a collective whole, then the Special Servicer shall revise such Asset Status
Report as soon as practicable thereafter, but in no event later than 30 days
after the objection to the Asset Status Report by the Operating Adviser. The
Special Servicer shall revise such Asset Status Report as provided in the prior
sentence until the earliest of (a) the delivery by the Operating Adviser of an
affirmative approval in writing of such revised Asset Status Report, (b) the
failure of the Operating Adviser to disapprove such revised Asset Status Report
in writing within ten (10) Business Days of its receipt thereof; or (c) the
passage of ninety (90) days from the date of preparation of the initial version
of the Asset Status Report. Following the earliest of such events, the Special
Servicer shall implement the recommended action as outlined in the most recent
version of such Asset Status Report (provided that the Special Servicer shall
not take any action that is contrary to applicable law or the terms of the
applicable Mortgage Loan documents). The Special Servicer may, from time to
time, modify any Asset Status Report it has previously delivered and implement
the new action in such revised report so long as such revised report has been
prepared, reviewed and either approved or not rejected as provided above.
Notwithstanding the prior paragraph, the Special Servicer may take any
action set forth in an Asset Status Report before the expiration of the ten (10)
Business Day period during which the Operating Adviser may reject such report if
(A) the Special Servicer has reasonably determined that failure to take such
action would materially and adversely affect the interests of the
Certificateholders, as a collective whole, and (B) it has made a reasonable
effort to contact the Operating Adviser. The Special Servicer may not take any
action inconsistent with an Asset Status Report that has been adopted as
provided above, unless such action would be required in order to act in
accordance with the Servicing Standard. If the Special Servicer takes any action
inconsistent with an Asset Status Report that has been adopted as provided
above, the Special Servicer shall promptly notify the Operating Adviser of such
inconsistent action and provide a reasonably detailed explanation of the reasons
therefor.
The Special Servicer shall deliver to the applicable Master Servicer,
the Operating Adviser and each Rating Agency a copy of each Asset Status Report
that has been adopted as provided above, in each case with reasonable promptness
following such adoption.
Notwithstanding anything herein to the contrary: (i) the Special Servicer shall
have no right or obligation to consult with or to seek and/or obtain consent or
approval from any Operating Adviser prior to acting (and provisions of this
Agreement requiring such consultation, consent or approval shall be of no
effect) during the period following any resignation or removal of an Operating
Adviser and before a replacement is selected; and (ii) no advice, direction or
objection from or by the Operating Adviser, as contemplated by Section 9.39 or
any other provision of this Agreement, may (and the applicable Special Servicer
shall ignore and act without regard to any such advice, direction or objection
that such Special Servicer has determined, in its reasonable, good faith
judgment, would): (A) require or cause such Special Servicer to violate
applicable law, the terms of any Mortgage Loan or any other Section of this
Agreement, including the applicable Special Servicer's obligation to act in
accordance with the Servicing Standard, (B)
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result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Excess Interest Grantor Trust, (C)
expose the Trust, the Depositor, the Master Servicers, the Special Servicer, the
Fiscal Agent, the Paying Agent, the Certificate Administrator, the Trustee or
any of their respective Affiliates, members, managers, officers, directors,
employees or agents, to any material claim, suit or liability or (D) materially
expand the scope of any Master Servicer's or Special Servicer's responsibilities
under this Agreement.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICERS
AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by a Master Servicer
and the Paying Agent, to enable it to perform its duties under this Agreement;
provided that no such request shall (i) require or cause the Special Servicer to
violate the Code, any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the servicing standards set
forth in this Agreement and to maintain the REMIC status of any REMIC Pool or
(ii) expose the Special Servicer, the Trust, the Fiscal Agent, the Paying Agent
or the Trustee to liability or materially expand the scope of the Special
Servicer's responsibilities under this Agreement. In addition, the Special
Servicer shall notify the applicable Master Servicer of all expenditures
incurred by it with respect to the Specially Serviced Mortgage Loans which are
required to be made by such Master Servicer as Servicing Advances as provided
herein, subject to the provisions of Section 4.4 hereof. The Special Servicer
shall also remit all invoices relating to Servicing Advances promptly upon
receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters (unless such reports, recommendations and analyses have
previously been delivered by the Special Servicer to the Operating Adviser
pursuant to Section 9.32), the expense of which shall not be an expense of the
Trust unless otherwise reimbursable pursuant to this Agreement:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of the
Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
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(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 RESERVED
SECTION 9.35 RESERVED
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class, the Special Servicer and each Seller as to
those Mortgage Loans sold to the Depositor by such Seller only (in such
capacity, together with any assignee, the "Option Holder") shall, in that order,
have the right, at its option (the "Option"), to purchase a Mortgage Loan (other
than a Non-Serviced Mortgage Loan that is subject to a comparable option under
the related Other Companion Loan Pooling and Servicing Agreement) from the Trust
at a price equal to the Option Purchase Price upon receipt of notice from the
Special Servicer that such Mortgage Loan has become at least 60 days delinquent
as to any monthly debt service payment (or is delinquent as to its Balloon
Payment); provided, however, that with respect to an A Note, the Option Holder's
rights under this Section 9.36 are subject to the rights of the holder of the
related B Note to purchase the A Note pursuant to the terms of the related
Intercreditor Agreement. The Option is exercisable, subject to Section 2.3, from
that date until terminated pursuant to clause (e) below, and during that period
the Option shall be exercisable in any month only during the period from the
10th calendar day of such month through the 25th calendar day, inclusive, of
such month. The Trustee on behalf of the Trust shall be obligated to sell such
Mortgage Loan upon the exercise of the Option (whether exercised by the original
holder thereof or by a holder that acquired such Option by assignment), but
shall have no authority to sell such Mortgage Loan other than in connection with
the exercise of an Option (or in connection with a repurchase of a Mortgage Loan
under Article II, an optional termination pursuant to Section 10.1 or a
qualified liquidation of a REMIC Pool) or if such Mortgage Loan is an A Note, to
the holder of the related B Note pursuant to the terms of the related
Intercreditor Agreement. Any Option Holder that exercises the Option shall be
required to purchase the applicable Mortgage Loan on the 4th Business Day after
such exercise. If any Option Holder desires to waive its right to exercise the
Option, then it shall so notify the Trustee in writing, and the Trustee shall
promptly notify the next party eligible to hold the Option set forth above of
its rights hereunder. Any of the parties eligible to hold the Option set forth
above may at any time notify the Trustee in writing of its desire to exercise
the Option, and the Trustee shall promptly notify (i) the current Option Holder
(and the other parties eligible to hold the Option) and (ii) solely with respect
to an Option to
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purchase an A Note, the holder of the related B Note, of such party's desire to
exercise the Option; provided that none of the Trustee, the applicable Master
Servicer or the Special Servicer shall disclose the Option Purchase Price to the
holder of such related B Note. If the Option Holder neither (i) exercises the
Option nor (ii) surrenders its right to exercise the Option within 3 Business
Days of its receipt of that notice, then the Option Holder's right to exercise
the Option shall lapse, and the Trustee shall promptly notify the next party
eligible to hold the Option (and the other parties eligible to hold the Option)
of its rights thereunder. The Certificate Registrar shall notify the Trustee as
to the identity of the holder of Certificates evidencing the greatest percentage
interest in the Controlling Class for purposes of determining an Option Holder.
(b) The purchase price in connection with the exercise of the Option
(the "Option Purchase Price") shall be an amount equal to the fair value of the
related Mortgage Loan, as determined by the Special Servicer. Prior to the
Special Servicer's determination of fair value referred to above, the fair value
of a Mortgage Loan shall be deemed to be an amount equal to the Purchase Price
plus (i) any prepayment penalty or yield maintenance charge then payable upon
the prepayment of such Mortgage Loan and (ii) the reasonable fees and expenses
of the Special Servicer, the applicable Master Servicer and the Trustee incurred
in connection with the sale of the Mortgage Loan. The Special Servicer shall
determine the fair value of a Mortgage Loan on the later of (A) as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or upon
the Balloon Payment becoming delinquent and (B) the date that is 75 days after
the Special Servicer's receipt of the Servicer Mortgage File relating to such
Mortgage Loan, and the Special Servicer shall promptly notify the Option Holder
(and the Trustee and each of the other parties set forth above that could become
the Option Holder) of (i) the Option Purchase Price and (ii) if such Mortgage
Loan is an A Note, that the A Note is subject to the terms of the related
Intercreditor Agreement and that any purchaser of the A Note will be subject to
such Intercreditor Agreement. The Special Servicer is required to recalculate
the fair value of the Mortgage Loan if there has been a material change in
circumstances or the Special Servicer has received new information (including,
without limitation, any cash bids received from the holder of the related B Note
in connection with an A Note), either of which has a material effect on the fair
value, provided that the Special Servicer shall be required to recalculate the
fair value of the Mortgage Loan if the time between the date of last
determination of the fair value of the Mortgage Loan and the date of the
exercise of the Option has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder (and
the Trustee and each of the other parties set forth above that could become the
Option Holder) of the revised Option Purchase Price. Any such recalculation of
the fair value of the Mortgage Loan shall be deemed to renew the Option in its
original priority at the recalculated price with respect to any party as to
which the Option had previously expired or been waived, unless the Option has
previously been exercised by an Option Holder at a higher Option Purchase Price.
In determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal that it or the
applicable Master Servicer may have obtained in accordance with this Agreement
within the prior twelve months; any views on fair value expressed by Independent
investors in mortgage loans comparable to the Mortgage Loan (provided that the
Special Servicer shall not be obligated to solicit such views); the period and
amount of any delinquency on the affected Mortgage Loan; whether to the Special
Servicer's actual knowledge, the Mortgage Loan is in default to avoid a
prepayment restriction; the physical condition of the related Mortgaged
Property; the state of the local economy; the expected recoveries from the
Mortgage Loan if the Special Servicer were to
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pursue a workout or foreclosure strategy instead of the Option being exercised;
and the Trust's obligation to dispose of any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders,
but in no event later than the three-year period (or such extended period)
specified in Section 9.15. If the Mortgage Loan as to which the Option relates
is a Serviced Pari Passu Mortgage Loan, then the Option Holder, in connection
with its exercise of such option, shall also be required to purchase the related
Serviced Companion Mortgage Loan under the Other Pooling and Servicing Agreement
or the related Intercreditor Agreement. Pursuant to the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement, if the holder of the option
thereunder repurchases a Non-Serviced Companion Mortgage Loan in connection with
its exercise of such option, then the holder of the option shall also be
required to purchase the related Non-Serviced Mortgage Loan, but only if set
forth in such Non-Serviced Mortgage Loan Pooling and Servicing Agreement. If the
Mortgage Loan as to which the Option relates is a Non-Serviced Mortgage Loan,
and the party exercising the purchase option under the Other Companion Loan
Pooling and Servicing Agreement in respect of the related Non-Serviced Companion
Mortgage Loan is not required thereunder to simultaneously purchase the related
Non-Serviced Mortgage Loan held by the Trust upon a purchase of the Non-Serviced
Companion Mortgage Loan, then the Special Servicer shall calculate the Option
Purchase Price of the Non-Serviced Mortgage Loan based upon the fair market
value calculation performed by the special servicer or other party under the
Other Companion Loan Pooling and Servicing Agreement (upon which the Special
Servicer may rely), to the extent provided to the Special Servicer.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party (including, without limitation, in connection with an A Note, the
holder of the related B Note and in connection with a Serviced Pari Passu
Mortgage Loan, the holder of the related Serviced Companion Mortgage Loan) by
the Option Holder at its discretion at any time after its receipt of notice from
the Special Servicer that an Option is exercisable with respect to a specified
Mortgage Loan, and upon such assignment such third party shall have all of the
rights granted to the Option Holder hereunder in respect of the Option. Such
assignment shall only be effective upon written notice (together with a copy of
the executed assignment and assumption agreement) being delivered to the
Trustee, the applicable Master Servicer and the Special Servicer, and none of
such parties shall be obligated to recognize any entity as an Option Holder
absent such notice.
(d) If the Special Servicer, the holder of Certificates representing
the greatest percentage interest in the Controlling Class or an Affiliate of
either thereof elects to exercise the Option, the Trustee shall be required to
determine whether the Option Purchase Price constitutes a fair price for the
Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Appraisal or other expert in real estate matters selected by the
Trustee with reasonable care and retained by the Trustee at the expense of the
party exercising the Option. The Trustee may also rely on the most recent
Appraisal of the related Mortgaged Property that was prepared in accordance with
this Agreement. If the Trustee were to determine that the Option Purchase Price
does not constitute a fair price, then the Special Servicer shall redetermine
the fair value taking into account the objections of the Trustee.
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(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a workout arrangement, (iii) been foreclosed
upon or otherwise resolved (including by a full or discounted payoff) or (iv)
been purchased by the related Seller pursuant to Section 2.3. In addition, the
Option with respect to an A Note shall terminate upon the purchase of the A Note
by the holder of the related B Note pursuant to the related Intercreditor
Agreement.
(f) Unless and until an Option Holder exercises an Option, the Special
Servicer shall continue to service and administer the related Mortgage Loan in
accordance with the Servicing Standard and this Agreement, and shall pursue such
other resolution or recovery strategies, including workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the Operating Adviser. The Operating Adviser
shall be elected for the purpose of receiving reports and information from the
Special Servicer in respect of the Specially Serviced Mortgage Loans.
(b) The initial Operating Adviser is Cadim TACH inc. The Controlling
Class shall give written notice to the Trustee, the Paying Agent and the Master
Servicers of the appointment of any subsequent Operating Adviser (in order to
receive notices hereunder). If a subsequent Operating Adviser is not so
appointed, an election of an Operating Adviser also shall be held. Notice of the
meeting of the Holders of the Controlling Class shall be mailed or delivered to
each Holder by the Paying Agent, not less than 10 nor more than 60 days prior to
the meeting. The notice shall state the place and the time of the meeting, which
may be held by telephone. A majority of Certificate Balance of the Certificates
of the then Controlling Class, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Operating Adviser. At the meeting,
each Holder shall be entitled to nominate one Person to act as Operating
Adviser. The Paying Agent shall cause the election of the Operating Adviser to
be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall be
entitled to vote in each election of the Operating Adviser. The voting in each
election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Paying Agent on or
prior to the date of such election. Immediately upon receipt by the Paying Agent
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Paying Agent shall
promptly notify the Trustee of the identity of the Operating Adviser. Until an
Operating Adviser is elected by Holders of Certificates representing more than
50% of the Certificate Balance of the Certificates of the then Controlling Class
or in
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the event that an Operating Adviser shall have resigned or been removed and a
successor Operating Adviser shall not have been elected, there shall be no
Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent, of more than 50% of
the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Paying Agent shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Paying
Agent shall be conclusive. Notwithstanding any other provisions of this Section
9.37, the Paying Agent may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
(g) Notwithstanding anything to the contrary set forth in this
Agreement, the applicable Master Servicer, the Special Servicer and the
Operating Adviser acknowledge that (i) with respect to the Coronado Center Loan
Group, pursuant to the terms of the related Intercreditor Agreement, so long as
the B Note holder or any of its affiliates is the "Controlling Holder" (as such
term is defined in the related Intercreditor Agreement), the Controlling Holder
(as such term is defined in the related Intercreditor Agreement) shall be
entitled to exercise the rights and powers granted to the Operating Adviser
herein with respect to the Coronado Center Loan Group, as applicable, and that
all references in this Agreement to the term "Operating Adviser" and to the
Operating Adviser appointed pursuant to Section 9.37(a) shall be deemed (solely
with respect to the Coronado Center Loan Group) to refer to the Controlling
Holder (as such term is defined in the related Intercreditor Agreement).
Notwithstanding the foregoing, the Operating Adviser designated by the
Certificateholders shall also receive all notices and reports delivered to the
Operating Adviser appointed pursuant to the related Intercreditor Agreement.
Notwithstanding the foregoing, nothing herein is intended nor shall be construed
to limit the Operating Adviser's right to consult (on a non-binding basis) with
the Special Servicer with respect to any Mortgage Loan including the Coronado
Center Loan Group, and (ii) with respect to the County Line Commerce Center Loan
Group, pursuant to the terms of the related Intercreditor Agreement, so long as
the B Note holder or any of its affiliates is the "Controlling Holder" (as such
term is defined in the related Intercreditor Agreement), the Controlling Holder
(as such term is defined in the related Intercreditor Agreement) shall be
entitled to exercise the rights and powers granted to the Operating Adviser
herein with respect to the County Line Commerce Center Loan Group, as
applicable, and that all references in this Agreement to the term "Operating
Adviser" and to the Operating Adviser appointed pursuant to Section 9.37(a)
shall be deemed (solely with respect to the County Line Commerce Center Loan
Group) to refer to the Controlling Holder (as such term is defined in the
related Intercreditor Agreement). Notwithstanding the foregoing, the Operating
Adviser designated by the Certificateholders shall also receive all notices and
reports delivered to
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the Operating Adviser appointed pursuant to the related Intercreditor Agreement.
Notwithstanding the foregoing, nothing herein is intended nor shall be construed
to limit the Operating Adviser's right to consult (on a non-binding basis) with
the Special Servicer with respect to any Mortgage Loan including the County Line
Commerce Center Loan Group.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust, the holder of any
Serviced Companion Mortgage Loan, the holder of any B Note or the
Certificateholders (other than a Controlling Class Certificateholder) for any
action taken, or for refraining from the taking of any action. By its acceptance
of a Certificate, each Certificateholder (and Certificate Owner) confirms its
understanding that the Operating Adviser may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates and that the Operating Adviser may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates and each holder of a Serviced Companion Mortgage Loan and B Note
(if any) and each Certificateholder (and Certificate Owner) agrees to take no
action against the Operating Adviser based upon such special relationship or
conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. Notwithstanding any other
provision of this Agreement (but subject to the penultimate paragraph of this
section 9.39), the Operating Adviser may advise the Special Servicer with
respect to the following actions of the Special Servicer and the Special
Servicer will not be permitted to take or consent to the applicable Master
Servicer taking any of the following actions unless and until it has notified
the Operating Adviser in writing and such Operating Adviser has not objected in
writing (i) within 5 Business Days of having been notified thereof in respect of
actions relating to non-Specially Serviced Mortgage Loans and (ii) within 10
Business Days of having been notified thereof in respect of actions relating to
Specially Serviced Mortgage Loans and in either case, having been provided with
all reasonably requested information with respect thereto (it being understood
and agreed that (a) the Special Servicer shall be entitled to conclusively rely
on the determination of the Operating Adviser made in connection with such
approval or disapproval contemplated by clause (xii) below (subject to the
operation of the Servicing Standard and the penultimate paragraph of Section
9.39) and (b) if such written objection has not been received by the Special
Servicer within such 5 Business Day or 10 Business Day period, as applicable,
then the Operating Adviser's approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver, or consent to
modification, amendment or waiver, of a Money Term or other material term of a
Mortgage Loan or a modification consisting of the extension of the original
Maturity Date of a Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan (other than
upon termination of the Trust pursuant to Article X);
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(iv) any determination to bring an REO Property into compliance
with Environmental Laws;
(v) any release of or acceptance of substitute or additional
collateral for a Mortgage Loan;
(vi) any acceptance of a discounted payoff;
(vii) any waiver or consent to waiver of a "due-on-sale" or
"due-on-encumbrance" clause;
(viii) any acceptance or consent to acceptance of an assumption
agreement releasing a Mortgagor from liability under a Mortgage Loan;
(ix) any release of collateral for a Mortgage Loan (other than
upon satisfaction of, such Mortgage Loan);
(x) any franchise changes or management company changes for which
the Special Servicer is required to consent;
(xi) releases of any Escrow Accounts, Reserve Accounts or Letters
of Credit that are not in compliance with the related Mortgage Loan documents;
and
(xii) any determination as to whether any type of property-level
insurance is required under the terms of any Mortgage Loan, is available at
commercially reasonable rates, is available for similar properties in the area
in which the related Mortgaged Property is located or any other determination or
exercise of discretion with respect to property-level insurance.
With respect to items (vii), (viii) and (ix), the Operating Adviser
shall be subject to the same time periods for advising the Special Servicer with
respect to any such matters as are afforded to the Special Servicer pursuant to
Section 8.7, which periods shall be co-terminous with those of Special Servicer.
In addition, the Operating Adviser may direct the Trustee to remove the Special
Servicer at any time upon the appointment and acceptance of such appointment by
a successor to the Special Servicer; provided that, prior to the effectiveness
of any such appointment, the Trustee and the Paying Agent shall have received
Rating Agency Confirmation from each Rating Agency. The Operating Adviser shall
pay any costs and expenses incurred by the Trust in connection with the removal
and appointment of a Special Servicer (unless such removal is based on any of
the events or circumstances set forth in Section 9.30(b)). The Trustee shall
notify the Paying Agent promptly upon its receipt of the direction set forth
above.
Notwithstanding anything herein to the contrary, no advice, direction
or objection from the Operating Adviser, as contemplated by this Section 9.39 or
elsewhere, may (and any Master Servicer and Special Servicer, as applicable,
shall ignore and act without regard to any such advice, direction or objection
that any such Master Servicer or Special Servicer, as applicable, has
determined, in its reasonable, good faith judgment, will) require or cause any
such Master Servicer or Special Servicer to violate any provision of this
Agreement or the
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Mortgage Loans, including the applicable Master Servicer's and Special
Servicer's obligation to act in accordance with the Servicing Standard.
The applicable Master Servicer (with respect to any Non-Serviced
Mortgage Loan that is not a "Specially Serviced Mortgage Loan" under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement) or Special Servicer
(with respect to any Non-Serviced Mortgage Loan that is a "Specially Serviced
Mortgage Loan" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement), as applicable, is authorized to exercise the rights and
powers of the Trustee, as holder of the Mortgage Note for each of the
Non-Serviced Mortgage Loans, under each of the related Non-Serviced Mortgage
Loan Intercreditor Agreements and Non-Serviced Mortgage Loan Pooling and
Servicing Agreements to the extent set forth in this Agreement. The applicable
Master Servicer or Special Servicer, as applicable, shall be subject to the same
limitations, constraints and restrictions in exercising such rights and powers
as would be applicable to the Trustee, in its capacity as holder of the Mortgage
Note for the applicable Non-Serviced Mortgage Loan and shall be further subject
to such consultation or approval rights of the Operating Adviser under this
Section 9.39 as would be applicable if such Non-Serviced Mortgage Loan were
serviced under this Agreement. Subject to any section of the applicable
Non-Serviced Mortgage Loan Intercreditor Agreement that specifically addresses a
particular matter with respect to a Non-Serviced Mortgage Loan, if the Trustee
is requested to take any action in its capacity as holder of the Mortgage Note
for such Non-Serviced Mortgage Loan, the Trustee will notify in writing the
applicable Master Servicer or Special Servicer, as applicable, and, subject to
Section 7.1, act in accordance with the instructions of, such party to the
extent set forth in this Agreement; provided, that the Trustee shall not be
required to take any action at the direction of the applicable Master Servicer
or Special Servicer, as applicable, that is not permitted under applicable law
or the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement
and Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding
the foregoing, any such party may only exercise any purchase option or cure
rights with respect to a Non-Serviced Companion Mortgage Loan in its individual
capacity and not on behalf of the Trust.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE.
With respect to each A/B Mortgage Loan (if any), the holder of the B
Note shall have such consent rights, cure rights, rights to remove the Special
Servicer or consultation rights and shall be entitled to such reports, during
the specified time periods, as are set forth in the related Intercreditor
Agreement.
Notwithstanding the foregoing, if the applicable Master Servicer or
Special Servicer, as applicable, determines that immediate action is necessary
to protect the interest of the Certificateholders and the holder of any related
Serviced Companion Mortgage Loan (as a collective whole), then such Master
Servicer or Special Servicer, as applicable may take any such action without
waiting for the response of the holder of the B Note provided for in the related
Intercreditor Agreement.
In addition, with respect to any A/B Mortgage Loan, to the extent
provided for in the related Intercreditor Agreement, the holder of the B Note
may direct the applicable Master
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Servicer or Special Servicer, as applicable, to take, or to refrain from taking,
such actions as the holder of the B Note may deem advisable or as to which
provision is otherwise made herein. Upon reasonable request, the applicable
Master Servicer or Special Servicer, as applicable, shall, with respect to any
A/B Mortgage Loan, provide the holder of the B Note with any information in such
Master Servicer's or Special Servicer's, as applicable, possession with respect
to such matters, including its reasons for determining to take a proposed
action.
In the event that the holder of the B Note shall direct the applicable
Master Servicer or the Special Servicer to take any action (other than those
provided for in the related Intercreditor Agreement), such Master Servicer or
the Special Servicer shall be entitled to receive reimbursement from collections
on and other proceeds of the B Note for (i) its reasonable out-of-pocket
expenses incurred in taking such action and (ii) to the extent that such action
constitutes an extraordinary action not in the ordinary course of administering
and servicing such mortgage loan, other reasonable costs incurred by the
applicable Master Servicer or the Special Servicer in taking such action. The
applicable Master Servicer or the Special Servicer shall notify the holder of
the B Note, prior to taking the related action, if such Master Servicer or the
Special Servicer anticipates that it will seek reimbursement therefor under the
preceding sentence, and of the estimated amount of such reimbursement, and shall
further notify the holder of the B Note if it intends to obtain actual
reimbursement in excess of the estimated amount.
Notwithstanding anything herein to the contrary, no advice, direction
or objection from the holder of the B Note, as contemplated by this Section
9.40, may (and the applicable Master Servicer and Special Servicer, as
applicable, shall ignore and act without regard to any such advice, direction or
objection that such Master Servicer or Special Servicer, as applicable, has
determined, in its reasonable, good faith judgment, will) require or cause such
Master Servicer or Special Servicer to violate any provision of this Agreement
or the Mortgage Loans, including such Master Servicer's and Special Servicer's
obligation to act in accordance with the Servicing Standard.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION OF
ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, the Class R-II Certificateholders
and the Class R-III Certificateholders as set forth in Section 10.2 and other
than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust (and final
distribution to the Certificateholders) and (B) the disposition of all REO
Property (and final distribution to the Certificateholders) or (ii) the sale of
the property held by the Trust in accordance with Section 10.1(b) or Section
10.1(c) or (iii) the termination of the Trust pursuant to Section 10.1(d) below;
provided that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last
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survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
(b) The Xxxxx Fargo Master Servicer (or its successor) or the PAR
Master Servicer (or its successor) shall give the Trustee, the Luxembourg Paying
Agent and the Paying Agent notice of the date when the Aggregate Principal
Balance of the Mortgage Loans is less than or equal to one percent (1%) of the
initial Aggregate Principal Balance of the Mortgage Loans as of the Cut-Off
Date. The Paying Agent shall promptly forward such notice to the Trustee, the
Depositor, the Holder of a majority of the Controlling Class, each Master
Servicer, the Special Servicer and the Holders of the Class R-I Certificates;
and the Holder of a majority of the Controlling Class, the PAR Master Servicer
(or its successor), the Xxxxx Fargo Master Servicer (or its successor), the
Special Servicer and the Holders of the Class R-I Certificates, in such priority
(and in the case of the Class R-I Certificateholders, a majority of the Class
R-I Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust. If any party desires to exercise
such option, it will notify the Trustee who will notify any party with a prior
right to exercise such option. If any party that has been provided notice by the
Trustee (excluding the Depositor) notifies the Trustee within ten Business Days
after receiving notice of the proposed purchase that it wishes to purchase the
assets of the Trust, then such party (or, in the event that more than one of
such parties notifies the Trustee that it wishes to purchase the assets of the
Trust, the party with the first right to purchase the assets of the Trust) may
purchase the assets of the Trust in accordance with this Agreement. Upon the
Paying Agent's receipt of the Termination Price set forth below, the Trustee
shall promptly release or cause to be released to the applicable Master Servicer
for the benefit of the Holder of the majority of the Class R-I Certificates, the
Special Servicer or the applicable Master Servicer, as the case may be, the
Mortgage Files pertaining to the Mortgage Loans. The "Termination Price" shall
equal 100% of the aggregate Principal Balances of the Mortgage Loans (other than
Mortgage Loans as to which a Final Recovery Determination has been made) on the
day of such purchase plus accrued and unpaid interest thereon at the applicable
Mortgage Rates (or Mortgage Rates less the applicable Master Servicing Fee Rate
on those Mortgage Loans serviced by the applicable Master Servicer if such
Master Servicer is the purchaser), with respect to the Mortgage Loans to the Due
Date for each Mortgage Loan ending in the Collection Period with respect to
which such purchase occurs, plus unreimbursed Advances and interest on such
unreimbursed Advances at the Advance Rate, and the fair market value of any
other property remaining and REMIC I. The Trustee shall consult with the
Placement Agents and the Underwriters or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if any
Placement Agent or any Underwriter or an Affiliate of the Placement Agent or the
Underwriters is exercising its right to purchase the Trust assets, the Trustee
shall consult with the Operating Adviser in order for the Trustee to determine
the fair market value, provided that the Operating Adviser is not an Affiliate
of the Class R-I Holder, the Special Servicer or a Master Servicer, or the
Trustee (the fees and expenses of which shall be paid for by buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Holder of the majority of the Class R-I Certificates, the Special
Servicer or the applicable Master Servicer, as the case may be, must deliver to
the Trustee an Opinion of Counsel, which shall be at the expense of such
Holders, the Special Servicer or such Master Servicer, as the case may be,
stating that such termination will be a "qualified liquidation" under section
860F(a)(4) of the Code. Such purchase shall be made in accordance with Section
10.3.
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(c) Following the date on which the aggregate Certificate Balance of
the Class A Senior, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates is reduced to zero, the
Remaining Certificateholder shall have the right to exchange all of its
Certificates, including the Class X Certificates, (other than the Class T
Certificates and the Residual Certificates) for all of the Mortgage Loans and
each REO Property remaining in the Trust Fund as contemplated by clause (ii) of
Section 10.1(a) by giving written notice to all the parties hereto no later than
60 days prior to the anticipated date of exchange. In the event that the
Remaining Certificateholder elects to exchange all of its Certificates,
including the Class X Certificates, (other than the Class T Certificates and the
Residual Certificates) for all of the Mortgage Loans and each REO Property
remaining in the Trust Fund in accordance with the preceding sentence, such
Remaining Certificateholder, not later than the Final Distribution Date, shall
deposit in a Certificate Accounts an amount in immediately available funds equal
to the aggregate outstanding Certificate Balance of the remaining REMIC III
Certificates (without duplication), plus accrued and unpaid interest thereon,
plus all amounts due and owing to the Depositor, each Master Servicer, the
Special Servicer, the Trustee, the Paying Agent and the Fiscal Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
such Certificate Account, but only to the extent that such amounts are not
already on deposit in such Certificate Account. Such amounts may be offset
against amounts due to the Remaining Certificateholder upon termination of the
Trust. Upon confirmation that such final deposits have been made and following
the surrender of all remaining Certificates by the Remaining Certificateholder
on the Final Distribution Date, the Trustee shall, upon receipt of a Request for
Release from the applicable Master Servicer, release or cause to be released to
the Remaining Certificateholder or any designee thereof, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Remaining Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Sections 10.2 and 10.3 of this Agreement. Thereafter, the Trust
Fund and the respective obligations and responsibilities under this Agreement of
the Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Paying Agent (other than annual tax returns and maintenance of books and records
and the preparation and filing of final tax returns) and the Fiscal Agent shall
terminate. For federal income tax purposes, the Remaining Certificateholder
shall be deemed to have purchased the assets of REMIC I for an amount equal to
the remaining Certificate Balance of its remaining Certificates (other than the
Residual Certificates), plus accrued and unpaid interest with respect thereto,
and the Paying Agent shall credit such amounts against amounts distributed in
respect of such Certificates. The remaining Mortgage Loans and REO Properties
are deemed disposed of to and distributed to the Remaining Certificateholder in
liquidation of the Trust Fund pursuant to Section 10.2.
(d) If at any time the Holders of the Class R-I Certificates own 100%
of the REMIC III Certificates such Holders may terminate REMIC I (which will in
turn result in the termination of REMIC II and REMIC III) upon (i) the delivery
to the Trustee and the Depositor of an Opinion of Counsel (which opinion shall
be at the expense of such Holders) stating that such termination will be a
"qualified liquidation" of each REMIC Pool under Section 860F of the Code, (ii)
the payment of any and all costs associated with such termination and (iii)
payment to each Master Servicer of market price compensation for the loss of its
applicable servicing rights hereunder. Such termination shall be made in
accordance with Section 10.3. The remaining
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Mortgage Loans and REO Properties thereupon shall be deemed disposed of to and
distributed to such Holders.
(e) Upon the termination of the Trust, any funds or other property
held by the Excess Interest Grantor Trust related to Excess Interest shall be
distributed to the Class T Certificateholders, on a pro rata basis.
(f) Upon the sale of the A Note relating to an A/B Mortgage Loan by
the Trust or the payment in full of such A Note, the related B Note shall no
longer be subject to this Agreement and shall no longer be serviced by the
applicable Master Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Class R-I, Class R-II and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II and REMIC III Certificates will
be made, and upon presentation and surrender of the Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class R-I, Class R-II
and REMIC III Certificates shall terminate and the Trustee shall terminate, or
request the applicable Master Servicer and the Paying Agent to terminate, the
applicable Certificate Account and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Paying Agent's obligation hereunder to hold all amounts payable to the Class
R-I, Class R-II and REMIC III Certificateholders in trust without interest
pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-I, Class R-II and REMIC III Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Certificate Registrar shall give a second written notice to
the remaining Class R-I, Class R-II and REMIC III Certificateholders to
surrender their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice any Class R-I, Class R-II
and REMIC III Certificates shall not have been surrendered for cancellation, the
Certificate Registrar may take appropriate steps to contact the remaining Class
R-I, Class R-II and REMIC III Certificateholders concerning surrender of such
certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Class R-I, Class R-II and REMIC III Certificates shall not have been
surrendered for cancellation, the Paying Agent, shall subject to applicable
state law relating to escheatment, hold all amounts distributable to such
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Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Class R-I, Class R-II or REMIC III
Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance with
this Section. Any money held by the Paying Agent pending distribution under this
Section 10.2 after 90 days after the adoption of a plan of complete liquidation
shall be deemed for tax purposes to have been distributed from the REMIC Pools
and shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC Pool shall be terminated in accordance
with the following additional requirements, unless at the request of one or both
of the Master Servicers or the Class R-I Certificateholders, as the case may be,
the Trustee seeks, and the Paying Agent subsequently receives an Opinion of
Counsel (at the expense of the applicable Master Servicer or the Class R-I
Certificateholders, as the case may be), addressed to the Depositor, the Trustee
and the Paying Agent to the effect that the failure of the Trust to comply with
the requirements of this Section 10.3 will not (i) result in the imposition of
taxes on "prohibited transactions" on any REMIC Pool under the REMIC Provisions
or (ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the REMIC III Certificates, the one or both of the Master Servicers
shall prepare and the Paying Agent on behalf of the Trustee (on behalf of REMIC
I, REMIC II or REMIC III) shall adopt a plan of complete liquidation of REMIC I,
meeting the requirements of a qualified liquidation under the REMIC Provisions,
which plan need not be in any special form and the date of which, in general,
shall be the date of the notice specified in Section 10.2(a) and shall be
specified in a statement attached to the federal income tax return of each REMIC
Pool;
(ii) At or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on the
REMIC III Certificates, the Trustee shall sell all of the assets of the Trust
for cash at the Termination Price; provided that if the Holders of the Class R-I
Certificates are purchasing the assets of the Trust, the amount to be paid by
such Holders may be paid net of the amount to be paid to such Holders as final
distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates all
assets of REMIC I remaining after such final payment of the REMIC I Regular
Interests, (B) to the Holders of the Class R-II Certificates all assets of REMIC
II remaining after such final payment of the REMIC II Regular Interests and (C)
to the holders of the Class R-III Certificates all remaining assets of REMIC III
(in each case other than cash retained to meet claims), and the Trust shall
terminate at that time; and
(iv) In no event may the final payment on REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates or the final
distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
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(b) By their acceptance of the Class R-I, Class R-II or Class R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Paying
Agent on behalf of the Trustee to take such action as may be necessary to adopt
a plan of complete liquidation of the REMIC Pool, and (ii) agree to take such
other action as may be necessary to adopt a plan of complete liquidation of the
Trust upon the written request of the Depositor, which authorization shall be
binding upon all successor Class R-I, Class R-II and Class R-III
Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control any Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Paying Agent is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within fifteen days after receipt by the Certificate Registrar
of a request by the Trustee or the Paying Agent, as the case may be, in writing,
a list, in such form as the Trustee or the Paying Agent, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, any
Master Servicer, the Trustee or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Paying Agent and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Paying Agent shall, within five Business Days after the
receipt of such application, send, at such Person's expense, the written
communication proffered by the applicants to all Certificateholders at their
addresses as they appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Paying Agent, the Master Servicers
and the Trustee that neither the Depositor, the Certificate Registrar, the
Paying Agent, the Master Servicers nor the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
the Paying Agent. Such instrument or instruments (as the action embodies therein
and evidenced thereby) are herein sometimes referred to as an "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and the Paying Agent, if made in the manner provided in this Section.
The Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other
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officer the execution thereof. Whenever such execution is by an officer of a
corporation or a member of a partnership on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of such officer's or member's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
nor the Paying Agent shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee, the
Paying Agent or the Depositor in reliance thereon, whether or not notation of
such action is made upon such Certificate.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII (other than Section 12.5) shall
apply to each REMIC Pool and the Excess Interest Grantor Trust, as applicable.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans
(other than Excess Interest payable thereon), such amounts with respect thereto
as shall from time to time be held in a Certificate Account, the Reserve
Account, the Interest Reserve Account and the Distribution Account (exclusive of
the Excess Interest Sub-account), the Insurance Policies and any related amounts
in the REO Account and any related REO Properties as a REMIC ("REMIC I") under
the Code, other than any portion of the foregoing amounts allocable to a B Note
or Serviced Companion Mortgage Loan. Such elections will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC I Interests are issued. For purposes of such election, the REMIC I
Regular Interests shall each be designated as a separate Class of "regular
interests" in REMIC I and the Class R-I Certificates shall be designated as the
sole Class of "residual interests" in REMIC I.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC
II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC II Interests are issued. For the purposes of such election, the REMIC II
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Regular Interests shall be designated as the "regular interests" in REMIC II and
the Class R-II Certificates shall be designated as the sole Class of the
"residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC
III") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates are issued. For purposes of such election, the Class A-1,
Class X-0X, Xxxxx X-0X, Xxxxx X-0X, Class A-AB, Class A-3, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q and Class S Certificates shall be designated as the "regular
interests" in REMIC III and the Class R-III Certificates shall be designated as
the sole Class of "residual interests" in REMIC III.
The Trustee and the Paying Agent shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the REMIC
Pools other than the REMIC I Regular Interests, the REMIC II Regular Interests,
the REMIC III Regular Interests and the Residual Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and timely
filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Master
Servicers. The Paying Agent shall prepare and file Form 8811 on behalf of each
REMIC Pool and shall designate an appropriate Person to respond to inquiries by
or on behalf of Certificateholders for original issue discount and related
information in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file all of each REMIC Pool's
federal and state income or franchise tax and information returns as such REMIC
Pool's direct representative, and the Trustee shall sign such returns; the
expenses of preparing and filing such returns shall be borne by the Paying
Agent, except that if additional state tax returns are required to be filed in
more than three states, the Paying Agent shall be entitled, with respect to any
such additional filings, to (i) be paid a reasonable fee and (ii) receive its
reasonable costs and expenses, both as amounts reimbursable pursuant to Section
5.2(a)(vi) hereof. The Depositor, each Master Servicer and the Special Servicer
shall provide on a timely basis to the Paying Agent or its designee such
information with respect to the Trust or any REMIC Pool as is in its possession,
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which the Depositor or such Master Servicer and the Special Servicer has
received or prepared by virtue of its role as Depositor or as a Master Servicer
and the Special Servicer hereunder and reasonably requested by the Paying Agent
to enable it to perform its obligations under this subsection, and the Paying
Agent shall be entitled to conclusively rely on such information in the
performance of its obligations hereunder. The Depositor shall indemnify the
Trust, the Trustee, the Paying Agent and the Fiscal Agent for any liability or
assessment against any of them or cost or expense (including attorneys' fees)
incurred by them resulting from any error resulting from bad faith, negligence,
or willful malfeasance of the Depositor in providing any information for which
the Depositor is responsible for preparing. The applicable Master Servicer and
the Special Servicer shall indemnify the Trustee, the Fiscal Agent, the Paying
Agent and the Depositor for any liability or assessment against the Trustee, the
Fiscal Agent, the Depositor, the Paying Agent or any REMIC Pool and any expenses
incurred in connection with such liability or assessment (including attorneys'
fees) resulting from any error in any of such tax or information returns caused
by the negligence, willful misconduct or bad faith of such Master Servicer or
the Special Servicer, as the case may be. The Paying Agent shall indemnify the
applicable Master Servicer, the Depositor or any REMIC Pool for any expense
incurred by such Master Servicer, the Depositor and any REMIC Pool resulting
from any error in any of such tax or information returns resulting from errors
in the preparation of such returns caused by the negligence, willful misconduct
or bad faith of the Paying Agent. Each indemnified party shall immediately
notify the indemnifying party or parties of the existence of a claim for
indemnification under this Section 12.1(e), and provide the indemnifying party
or parties, at the expense of such indemnifying party or parties, an opportunity
to contest the tax or assessment or expense giving rise to such claim, provided
that the failure to give such notification rights shall not affect the
indemnification rights in favor of any REMIC Pool under this Section 12.1(e).
Any such indemnification shall survive the resignation or termination of the
applicable Master Servicer, the Paying Agent or the Special Servicer, or the
termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Paying Agent shall provide (i) to the Internal Revenue
Service or other Persons (including, but not limited to, the Transferor of a
Residual Certificate, to a Disqualified Organization or to an agent that has
acquired a Residual Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished to
them, shall prepare and file with the appropriate state authorities as may to
the actual knowledge of a Responsible Officer of the Paying Agent be required by
applicable law and shall prepare and disseminate to Certificateholders Internal
Revenue Service Forms 1099 (or otherwise furnish information within the control
of the Paying Agent) to the extent required by applicable law. The
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Paying Agent will make available to any Certificateholder any tax related
information required to be made available to Certificateholders pursuant to the
Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC Pool's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the Paying Agent and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the Paying
Agent as their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such documents and designation of a Tax Matters Person,
including the designation of such Residual Certificateholder. The Paying Agent
shall not be required to expend or risk its own funds or otherwise incur any
other financial liability in the performance of its duties hereunder or in the
exercise of any of its rights or powers (except to the extent of the ordinary
expenses of performing its duties under this Agreement), if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, each Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, the Paying Agent, each Master Servicer and the Special Servicer,
within the scope of its express duties, and shall each act in accordance with
this Agreement and the REMIC Provisions in order to create and maintain the
status of each REMIC Pool as a REMIC and the Excess Interest Grantor Trust as a
grantor trust or, as appropriate, adopt a plan of complete liquidation with
respect to each REMIC Pool.
(j) The Trustee, the Paying Agent, each Master Servicer, the Special
Servicer, the Fiscal Agent and the Holders of Residual Certificates shall not
take any action or fail to take any action or cause any REMIC Pool to take any
action or fail to take any action if any of such persons knows or could, upon
the exercise of reasonable diligence, know, that, under the REMIC Provisions
such action or failure, as the case may be, could (i) endanger the status of any
REMIC Pool as a REMIC or (ii) result in the imposition of a tax upon any REMIC
Pool (including but not limited to the tax on prohibited transactions as defined
in Code Section 860F(a)(2)) or (iii) endanger the status of the Excess Interest
Grantor Trust as a grantor trust unless the Trustee and the Paying Agent have
received an Opinion of Counsel (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such a tax. Any action required under this
section which would result in an unusual or unexpected expense shall be
undertaken at the expense of the party seeking the Trustee, the Paying Agent or
the Holders of the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on any REMIC Pool created
hereunder, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to any REMIC Pool created hereunder after the Startup Day
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pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 9.14(e)),
such tax, together with all incidental costs and expenses (including, without
limitation, penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Paying Agent, if such tax arises out of or results from a
breach of any of its obligations under this Agreement; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under this Agreement; (iii) the applicable
Master Servicer, if such tax arises out of or results from a breach by such
Master Servicer of any of its obligations under this Agreement; (iv) the Fiscal
Agent, if such tax arises out of or results from a breach by the Fiscal Agent of
any of its obligations under this Agreement; (v) the Trustee, if such tax arises
out of or results from a breach by the Trustee of any of its obligations under
this Agreement; and (vi) the Trust in all other instances. Any tax permitted to
be incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged
to and paid by the Trust from the net income generated on the related REO
Property. Any such amounts payable by the Trust in respect of taxes shall be
paid by the Paying Agent out of amounts on deposit in the Distribution Account.
(l) The Paying Agent and, to the extent that records are maintained by
a Master Servicer or the Special Servicer in the normal course of its business,
such Master Servicer and the Special Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis. Notwithstanding anything to the contrary
contained herein, except to the extent provided otherwise in the Mortgage Loans
or in the Mortgages, all amounts collected on the Mortgage Loans shall, for
federal income tax purposes, be allocated first to interest due and payable on
the Mortgage Loans (including interest on overdue interest, other than
additional interest at a penalty rate payable following a default). The books
and records must be sufficient concerning the nature and amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the REMIC
Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicers nor
the Special Servicer shall enter into any arrangement by which any REMIC Pool
will receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Paying Agent within ten (10) days after the Closing Date all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes on
the valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Certificates, as applicable, and the projected cash flows of the
Mortgage Loans. Thereafter, the Depositor shall provide to the Paying Agent or
its designee, promptly upon request therefor, any such additional information or
data within the Depositor's possession or knowledge that the Paying Agent may,
from time to time, reasonably request in order to enable the Paying Agent to
perform its duties as set forth herein. The Paying Agent is hereby directed to
use any and all such information or data provided by the Depositor in the
preparation of all federal and state income or franchise tax and information
returns and reports for each REMIC Pool to Certificateholders as required
herein. The Depositor hereby indemnifies the Trustee, the Paying Agent, the
Fiscal Agent, and each REMIC Pool for any losses, liabilities, damages, claims,
expenses (including
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attorneys' fees) or assessments against the Trustee, the Paying Agent, the
Fiscal Agent and each REMIC Pool arising from any errors or miscalculations of
the Paying Agent pursuant to this Section that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Paying Agent (but not resulting from the methodology employed by the
Paying Agent) on a timely basis and such indemnification shall survive the
termination of this Agreement and the termination or resignation of the Paying
Agent and the Fiscal Agent.
The Paying Agent agrees that all such information or data so obtained
by it are to be regarded as confidential information and agrees that it shall
use its reasonable best efforts to retain in confidence, and shall ensure that
its officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the applicable Master
Servicer will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC III, for each Class of REMIC I Regular
Interests and for each Class of REMIC II Regular Interests is the Rated Final
Distribution Date; provided that the "latest possible maturity date" for the
Class X-2 Certificates is the Distribution Date in August 2013.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Paying Agent, the applicable Master Servicer nor the Special
Servicer shall permit the sale, disposition or substitution of any of the
Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or
default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool,
(iii) the termination of any REMIC Pool in a "qualified liquidation" as defined
in Section 860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II
hereof), nor acquire any assets for the Trust, except as provided in Article II
hereof, nor sell or dispose of any investments in a Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC Certificates, other than the
Residual Certificates, as the regular interests therein, (B) affect the
distribution of interest or principal on the Certificates, (C) result in the
encumbrance of the assets transferred or assigned to any REMIC Pool (except
pursuant to the provisions of this Agreement) or (D) cause
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any REMIC Pool to be subject to a tax on "prohibited transactions" or
"prohibited contributions" or other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, neither the Trustee, the Paying Agent, the
applicable Master Servicer nor the Special Servicer shall permit any
modification of a Money Term of a Mortgage Loan or a Specially Serviced Mortgage
Loan unless (i) the Trustee, the Special Servicer, Paying Agent and the
applicable Master Servicer have received a Nondisqualification Opinion or a
ruling from the Internal Revenue Service (at the expense of the party making the
request that such Master Servicer or the Special Servicer modify the Mortgage
Loan or a Specially Serviced Mortgage Loan) to the effect that such modification
would not be treated as an exchange pursuant to Section 1001 of the Code (or, if
it would be so treated, would not be treated as a "significant modification" for
purposes of Section 1.860G-2(b) of the Treasury Regulations) or (ii) such
modification meets the requirements set forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS. In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by either the Trustee or the
Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of any Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by any Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holders of the Residual Certificates now or hereafter existing at law or in
equity. The Trustee or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
SECTION 12.5 EXCESS INTEREST GRANTOR TRUST
(a) The assets of the Excess Interest Grantor Trust, consisting of the
right to any Excess Interest in respect of the ARD Loans and the Excess Interest
Sub-account, shall be held by the Trustee for the benefit of the Holders of the
Class T Certificates, which Class T Certificates, in the aggregate, will
evidence 100% beneficial ownership of such assets from and after the Closing
Date. It is intended that the portion of the Trust consisting of the Excess
Interest Grantor Trust will be treated as a grantor trust for federal income tax
purposes, and each of the parties to this Agreement agrees that it will not take
any action that is inconsistent with establishing or maintaining such treatment.
Under no circumstances may the Trustee vary the assets of the Excess Interest
Grantor Trust so as to take advantage of variations in the market so
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as to improve the rate of return of Holders of the Class T Certificates. The
Trustee shall be deemed to hold and the Paying Agent shall account for the
Excess Interest Grantor Trust separate and apart from the assets of any REMIC I
Pool created hereunder.
(b) The parties intend that the portions of the Trust consisting of
the Excess Interest Grantor Trust shall constitute, and that the affairs of the
Trust (exclusive of the REMIC Pools) shall be conducted so as to qualify such
portion as, a "grantor trust" under the Code, and the provisions hereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Paying Agent shall furnish or cause to be furnished to the Class T
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income and expenses relating to
their shares of the income and expenses of the Excess Interest Grantor Trust,
and with respect to the Excess Interest Grantor Trust, on the cash or accrual
method of accounting and so as to enable reporting to Holders of Class T
Certificates based on their annual accounting period, at the time or times and
in the manner required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders or the holder of
any B Note, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made with
respect to the Certificates, the Trust or this Agreement in the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or the Prospectus, or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to amend any provision hereof to the extent necessary or desirable to
maintain the status of each REMIC Pool as a REMIC (or the grantor trust created
from the related portion of the Trust) for the purposes of federal income tax
law (or comparable provisions of state income tax law), (iv) to make any other
provisions with respect to matters or questions arising under or with respect to
this Agreement not inconsistent with the provisions hereof, (v) to modify, add
to or eliminate the provisions of Article III relating to transfers of Residual
Certificates, (vi) to amend any provision herein to the extent necessary or
desirable to list the Certificates on a stock exchange, including, without
limitation, the
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appointment of one or more paying agents and the requirement that certain
information be delivered to such paying agents, (vii) to modify the provisions
relating to the timing of Advance reimbursements in order to conform them to the
commercial mortgage-backed securities industry standard for such provisions if
(w) the Depositor, the applicable Master Servicer and the Trustee determine that
that industry standard has changed, (x) such modification will not result in an
Adverse REMIC Event, as evidenced by an Opinion of Counsel, (y) each Rating
Agency has delivered a Rating Agency Confirmation with respect to such
modification, and (z) the Operating Adviser consents to such modification, or
(viii) to make any other amendment which does not adversely affect in any
material respect the interests of any Certificateholder (unless such
Certificateholder consents) and with respect to the A/B Mortgage Loan, the
interests of the related B Note holder, to the extent provided for in the
related Intercreditor Agreement, unless such holder consents. No such amendment
effected pursuant to clause (i), (ii) or (iv) of the preceding sentence shall
(A) adversely affect in any material respect the interests of any
Certificateholder not consenting thereto without the consent of 100% of the
Certificateholders (if adversely affected) or any B Note holder, (if adversely
affected), or (B) adversely affect the status of any REMIC Pool as a REMIC (or
the grantor trust created from the related portion of the Trust). Prior to
entering into any amendment without the consent of Holders pursuant to this
paragraph, the Trustee may require an Opinion of Counsel and a
Nondisqualification Opinion (in the case of clauses (i), (ii) and (iii), at the
expense of the Depositor, and otherwise at the expense of the party requesting
such amendment, except that if the Trustee requests such amendment, such
amendment shall be at the expense of the Depositor, if the Depositor consents),
to the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material economic
respect any Holder if the Trustee receives a Rating Agency Confirmation from
each Rating Agency (and any Opinion of Counsel requested by the Trustee in
connection with any such amendment may rely expressly on such confirmation as
the basis therefor). Any such amendment shall be deemed not to adversely affect
any Holder in any material noneconomic respect or any other Person in any
material respect if the Trustee receives an Opinion of Counsel to such effect,
which opinion shall not be an expense of the Trustee.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders
or any holders of any B Notes) and with the written confirmation of the Rating
Agencies that such amendment would not cause the ratings on any Class of
Certificates to be qualified, withdrawn or downgraded; provided, however, that
such amendment may not effect any of the items set forth in clauses (i) through
(iv) of the proviso in paragraph (c) of this Section 13.3; provided, further,
that such amendment may not materially and adversely affect the holder of any B
Note without the consent of such holder to the extent provided for in the
related Intercreditor Agreement. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding and without the consent
of any B Note holder to the extent provided for in the related Intercreditor
Agreement, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; provided, however, that no such amendment may
(i) directly or
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indirectly reduce in any manner the amount of, or delay the timing of the
distributions required to be made on any Certificate without the consent of the
Holder of such Certificate, (ii) reduce the aforesaid percentages of Aggregate
Certificate Percentage or Certificate Balance, the Holders of which are required
to consent to any such amendment without the consent of all the Holders of each
Class of Certificates affected thereby, (iii) eliminate or reduce the applicable
Master Servicer's, the Trustee's or the Fiscal Agent's obligation to make an
Advance, including without limitation, in the case of the applicable Master
Servicer, the obligation to advance on a B Note or Serviced Companion Mortgage
Loan, or alter the Servicing Standard except as may be necessary or desirable to
comply with the REMIC Provisions; (iv) adversely affect the status of the Excess
Interest Grantor Trust as a grantor trust for federal income tax purposes,
without the consent of 100% of the Class T Certificateholders or (v) adversely
affect the status of any REMIC Pool as a REMIC for federal income tax purposes
without the consent of 100% of the Certificateholders (including the Class R-I,
Class R-II and Class R-III Certificateholders but excluding the Class T
Certificateholders); provided, further, that such amendment may not materially
and adversely affect the holder of any B Note without the consent of such holder
to the extent provided for in the related Intercreditor Agreement; and provided,
further, that no such amendment may modify Section 8.18 of this Agreement
without Rating Agency Confirmation. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(c) is permitted by this Agreement at the
expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Reserved.
(h) Notwithstanding the fact that the provisions in Section 13.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trust, the Trustee, any Master Servicer or the
Special Servicer, any Certificate beneficially owned by a Seller or any of its
Affiliates shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent) for purposes
of determining if the requisite consents of Certificateholders under this
Section 13.3 have been obtained.
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(i) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may be amended pursuant to
Section 8.26(d) herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy
to: General Counsel; (B) in the case of the Trustee and the Fiscal Agent at the
Corporate Trust Office; (C) in the case of the Xxxxx Fargo Master Servicer,
Xxxxx Fargo Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with a
copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D) in the case of
MSMC, Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx, with a copy to: General Counsel; (E) in the
case of the Special Servicer, CWCapital Asset Management LLC, 0000 Xxxxxxxxxxxx
Xxxxxx X.X., Xxxxxxxxxx, X.X. 0000-0000, Attention: Xxxxx Xxxxxxxxx (MSMC
2005-HQ6), facsimile number: (000) 000-0000 with a copy to CWCapital Asset
Management LLC, One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000,
Attention: Xxxx Xxxx (MSMC 2005-HQ6), facsimile number (000) 000-0000, (F) in
the case of the initial Operating Adviser, Cadim TACH inc. c/o CDP Capital Real
Estate Advisors, CDP Capital Center, 0000 Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx X-000,
Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, Attention: Corporate Secretary, with a copy to
CWCapital Investments, LLC, 0000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxx (MSMC 2005-HQ6) and a copy to
CWCapital Investments, LLC, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X.
0000-0000, Attention: Xxxxxxxx Xxxxxxxxx (MSMC 2005-HQ6), facsimile number (202)
466-1834, (G) in the case of the Paying Agent, Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services (CMBS) Xxxxxx Xxxxxxx Capital I Inc., Series 2005-HQ6,
(H) in the case of PMCF, Four Gateway Center, 8th Floor, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx (with a copy to the
attention of Xxxx Xxxxx, Legal Department)., (I) in the case of Xxxxx Fargo, 000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, XXX: A012-144, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxx Xxxxxx, (J) in the case of the PAR Master Servicer, Prudential
Asset Resources Inc., 0000 Xxxx Xxxxxx, Xxxxx 0000X, Xxxxxx, Xxxxx, 00000,
Attention: C. Xxxx Xxxxx, telecopy number (000) 000-0000, and (K) in the case of
SunTrust , 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxx
Xxxxxxxx, Managing Director, or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. Any notice
required or permitted to be mailed to a Holder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed
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within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement; provided, however, that (i) the Mortgagors set forth
on Schedule VIII hereto are intended third-party beneficiaries of the fifth and
sixth paragraph of Section 2.3(a), (ii) the holder of any Serviced Companion
Mortgage Loan (and any related master servicer or special servicer) and any B
Note, if any, is an intended third-party beneficiary in respect of the rights
afforded it hereunder and (iii) the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer are
intended third-party beneficiaries of Sections 5.2(a)(ii)(B), 8.25(d) and
9.24(d), respectively.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating Agencies,
Special Servicer and the Operating Adviser of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 13.3
hereof;
(ii) the Interim Certification and the Final Certification
required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan or REO
Mortgage Loan pursuant to Section 2.3(a) hereof;
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(iv) any resignation of a Master Servicer, the Special Servicer,
the Paying Agent, the Operating Adviser, the Fiscal Agent or the Trustee
pursuant to this Agreement;
(v) the appointment of any successor to any Master Servicer, the
Fiscal Agent, the Trustee, the Paying Agent, the Operating Adviser or the
Special Servicer pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to Fitch, to:
Fitch Ratings, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
If to DBRS, to:
Dominion Bond Rating Service, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Group
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
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(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section
7.6; or
(ii) the appointment of a successor trustee pursuant to Section
7.7; or
(iii) the appointment of a successor Operating Adviser pursuant
to Section 9.37.
(d) The applicable Master Servicer shall deliver to the Rating
Agencies and the Depositor any other information as reasonably requested by the
Rating Agencies and the Depositor, and shall deliver to the Special Servicer
each of the reports required to be delivered by the applicable Master Servicer
to the Special Servicer pursuant to the terms of this Agreement. The Trustee,
the Paying Agent and the Special Servicer shall deliver to the Rating Agencies
and the Depositor any information as reasonably requested by the Rating Agencies
and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, any Master Servicer, the Paying Agent or the Trustee shall be
given by such parties, respectively, on a best efforts basis and only as a
matter of courtesy and accommodation to the Rating Agencies, unless otherwise
specifically required herein, and such parties, respectively, shall have no
liability for failure to deliver any such notice or document to the Rating
Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) the property described in clauses (1)-(4) below (regardless
of whether subject to the UCC or how classified thereunder) and all accounts,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit
and investment property consisting of, arising from or relating to any of the
property described in clauses (1)-(4) below: (1) the Mortgage Loans identified
on
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the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies, including
all Qualifying Substitute Mortgage Loans, all distributions with respect thereto
payable on and after the Cut-Off Date, and the Mortgage Files; (2) the
Distribution Account, all REO Accounts, each Certificate Account, the Reserve
Account and the Interest Reserve Account, including all property therein and all
income from the investment of funds therein (including any accrued discount
realized on liquidation of any investment purchased at a discount); (3) the
REMIC I Regular Interests and the REMIC II Regular Interests; and (4) the
Mortgage Loan Purchase Agreements that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof;
(ii) all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other rights
arising from or by virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
All cash and non-cash Proceeds (as defined in the Uniform Commercial
Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 8-301 and 9-315 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, each Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The applicable Master Servicer shall file, at the expense of
the Trust as an Additional Trust Expense all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect the Trustee's security interest
in such property, including without limitation (i) continuation statements, and
(ii) such other statements as may be occasioned by any transfer of any interest
of the applicable Master Servicer or the Depositor in such property. In
connection herewith, the Trustee shall have all of the rights and remedies of a
secured party and creditor under the Uniform Commercial Code as in force in the
relevant jurisdiction.
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SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the applicable Master Servicer at the expense of the Trust as an
Additional Trust Expense, but only upon direction of the Depositor accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates. A Master Servicer shall not be required to pay any
such fees or any fees charged for any Rating Agency Confirmation (except any
confirmation required under Section 8.22, Section 8.23 or in connection with a
termination and replacement of the such Master Servicer following an Event of
Default of such Master Servicer).
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IN WITNESS WHEREOF, the Depositor, the Master Servicers, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXXX XXXXXXX CAPITAL I INC.
as Depositor
By: /s/ Xxxxxx X. Friend
------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
PRUDENTIAL ASSET RESOURCES, INC.
as a Master Servicer
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President Asset
Management
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer
By: /s/ Xxxxxxx XxXxxxx
------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Vice President
CWCAPITAL ASSET MANAGEMENT LLC,
as Special Servicer
By: : /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: General Counsel/Secretary
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V., as Fiscal Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Authenticating Agent
and Certificate Registrar
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
================================================================================
XXXXXX XXXXXXX CAPITAL I INC.,
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS A MASTER SERVICER,
PRUDENTIAL ASSET RESOURCES, INC.,
AS A MASTER SERVICER
CWCAPITAL ASSET MANAGEMENT LLC,
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT AND CERTIFICATE REGISTRAR
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF AUGUST 1, 2005
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-HQ6
================================================================================
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.646% MASTER SERVICERS: XXXXX FARGO BANK, NATIONAL
ASSOCIATION AND PRUDENTIAL ASSET RESOURCES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF AUGUST 1, 2005 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
CUT-OFF DATE: AUGUST 1, 2005
PAYING AGENT: XXXXX FARGO BANK,
CLOSING DATE: AUGUST 11, 2005 NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1
CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $121,200,000
CUSIP NO.: 61745M 6B 4
CERTIFICATE BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$121,200,000
No. A-1-1
</TABLE>
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-2
[FORM OF CLASS A-1A CERTIFICATE]
THIS CLASS A-1A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1A CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.946% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1A CERTIFICATES AS OF THE CLOSING DATE: FISCAL AGENT: ABN AMRO BANK N.V.
$318,834,000 CUSIP NO.: 61745M 6C 2
CERTIFICATE BALANCE OF THIS CLASS A-1A
CERTIFICATE AS OF THE CLOSING DATE:
$318,834,000
No. A-1A-1
</TABLE>
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1A Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1A Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-3
[FORM OF CLASS A-2A CERTIFICATE]
THIS CLASS A-2A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.882% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2A CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $294,875,000
CUSIP NO.: 61745M 6D 0
CERTIFICATE BALANCE OF THIS CLASS A-2A
CERTIFICATE AS OF THE CLOSING DATE:
$294,875,000
No. A-2A-1
</TABLE>
CLASS A-2A CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2A Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2A Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-4
[FORM OF CLASS A-2B CERTIFICATE]
THIS CLASS A-2B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.913% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS A-2B CERTIFICATES AS OF THE CLOSING
DATE: $42,125,000 FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE BALANCE OF THIS CLASS A-2B CUSIP NO.: 61745M 7Y 3
CERTIFICATE AS OF THE CLOSING DATE:
$42,125,000
No. A-2B-1
</TABLE>
CLASS A-2B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2B Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-5
[FORM OF CLASS A-AB CERTIFICATE]
THIS CLASS A-AB CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-AB CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.973% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-AB CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $111,100,000
CERTIFICATE BALANCE OF THIS CLASS A-AB CUSIP NO.: 61745M 6E 8
CERTIFICATE AS OF THE CLOSING DATE:
$111,100,000
No. A-AB-1
</TABLE>
CLASS A-AB CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-AB Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-AB Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-AB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-6
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.392% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-3 CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $103,000,000
CUSIP NO.: 61745M 6F 5
CERTIFICATE BALANCE OF THIS CLASS A-3
CERTIFICATE AS OF THE CLOSING DATE:
$103,000,000
No. A-3-1
</TABLE>
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-3 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-7
[FORM OF CLASS A-4A CERTIFICATE]
THIS CLASS A-4A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4A CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.898% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-4A CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $1,060,595,000
CUSIP NO.: 61745M 6G 3
CERTIFICATE BALANCE OF THIS CLASS A-4A
CERTIFICATE AS OF THE CLOSING DATE:
$1,060,595,000
No. A-4A-1
</TABLE>
CLASS A-4A CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4A Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-4A Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certifiticate Registrar has caused
this Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-8
[FORM OF CLASS A-4B CERTIFICATE]
THIS CLASS A-4B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.042% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-4B CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $151,514,000
CERTIFICATE BALANCE OF THIS CLASS A-4B CUSIP NO.: 61745M 6H 1
CERTIFICATE AS OF THE CLOSING DATE:
$151,514,000
No. A-4B-1
</TABLE>
CLASS A-4B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-4B Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-9
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.073% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-J CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $175,571,000
CUSIP NO.: 61745M 6K 4
CERTIFICATE BALANCE OF THIS CLASS A-J
CERTIFICATE AS OF THE CLOSING DATE:
$175,571,000
No. A-J-1
</TABLE>
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-J Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-10
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE 5.152% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $24,098,000
CUSIP NO.: 61745M 6L 2
CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE:
$24,098,000
No. B-1
</TABLE>
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-11
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.172 % MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $34,425,000
CUSIP NO.: 61745M 6M 0
CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE:
$34,425,000
No. C-1
</TABLE>
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-12
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.202% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $27,541,000
CUSIP NO.: 61745M 6N 8
CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
$27,541,000
No. D-1
</TABLE>
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class D Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-13
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.231% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS E CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $24,098,000
CUSIP NO.: 61745M 6P 3
CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
$24,098,000
No. E-1
</TABLE>
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class E Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.........Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-14
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.271 % MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
PAYING AGENT: XXXXX FARGO BANK,
CLOSING DATE: AUGUST 11, 2005 NATIONAL ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING CUSIP NO.: 61745M 6Q 1
DATE: $27,541,000
CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE: $27,541,000
No. F-1
</TABLE>
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class F Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-15
[FORM OF CLASS G CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE
LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS G CERTIFICATE. ACCORDINGLY,
THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.379% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS G CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $27,540,000
CUSIP NO.: 61745M 6S 7
CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING DATE:
$27,540,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. G-1
</TABLE>
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS H CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.602% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
PAYING AGENT: XXXXX FARGO BANK,
CLOSING DATE: AUGUST 11, 2005 NATIONAL ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING CUSIP NO.: 61745M 6T 5
DATE: $34,426,000
CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
$34,426,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. H-1
</TABLE>
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS J CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.602% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS J CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $30,983,000
CUSIP NO.: 61745M 6U 2
CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE:
$30,983,000 SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. J-1
</TABLE>
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class J Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-18
[FORM OF CLASS K CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 5.602% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $41,311,000
CUSIP NO.: 61745M 6V 0
CERTIFICATE BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE:
$41,311,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. K-1
</TABLE>
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class K
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________-
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-19
[FORM OF CLASS L CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $10,327,000
CUSIP NO.: 61745M 6W 8
CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
$10,327,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. L-1
</TABLE>
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class L
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-20
[FORM OF CLASS M CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $10,328,000
CUSIP NO.: 61745M 6X 6
CERTIFICATE BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE:
$10,328,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. M-1
</TABLE>
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Xxxxxx Xxxxxxx Capital I Inc. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the Paying
Agent, the Certificate Registrar, the Master Servicers and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class
M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS N CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS N CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $17,213,000
CUSIP NO.: 61745M 6Y 4
CERTIFICATE BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE:
$17,213,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. N-1
</TABLE>
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class N
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-22
[FORM OF CLASS O CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS O CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $3,442,000
CUSIP NO.: 61745M 6Z 1
CERTIFICATE BALANCE OF THIS CLASS O
CERTIFICATE AS OF THE CLOSING DATE:
$3,442,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. O-1
</TABLE>
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class O
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-23
[FORM OF CLASS P CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS P CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $10,328,000
CUSIP NO.: 61745M 7A 5
CERTIFICATE BALANCE OF THIS CLASS P
CERTIFICATE AS OF THE CLOSING DATE:
$10,328,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. P-1
</TABLE>
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class P Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class Pf Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class P
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-24
[FORM OF CLASS Q CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS Q CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS Q CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS Q CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $10,328,000
CUSIP NO.: 61745M 7B 3
CERTIFICATE BALANCE OF THIS CLASS Q
CERTIFICATE AS OF THE CLOSING DATE:
$10,328,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. Q-1
</TABLE>
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class Q Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class Q
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-25
[FORM OF CLASS S CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS S CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS S CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 4.756% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSET RESOURCES, INC.
AS OF AUGUST 1, 2005
SPECIAL SERVICER: CWCAPITAL ASSET
CUT-OFF DATE: AUGUST 1, 2005 MANAGEMENT LLC
CLOSING DATE: AUGUST 11, 2005 PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS S CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $41,311,199
CUSIP NO.: 61745M 7D 9
CERTIFICATE BALANCE OF THIS CLASS S
CERTIFICATE AS OF THE CLOSING DATE:
$41,311,199 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. S-1
</TABLE>
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class S Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class S
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 13th
day of each month or, if such 13th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is
exchangeable in whole or in part for one or more Global Certificates only (i) on
or after the termination of the 40-day distribution compliance period (as
defined in Regulation S) and (ii) upon presentation of a Regulation S
Certificate (as defined in the Pooling Agreement) required by Article III of the
Pooling and Servicing Agreement. Upon exchange of this Regulation S Temporary
Global Certificate for one or more Global Certificates, the Trustee shall cancel
this Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-26
[FORM OF CLASS T CERTIFICATE]
THIS CLASS T CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NO PASS-THROUGH RATE, CERTIFICATE BALANCE OR NOTIONAL
AMOUNT. THE HOLDER OF THIS CERTIFICATE IS ENTITLED ONLY TO THE DISTRIBUTIONS
DESCRIBED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
PERCENTAGE INTEREST OF THIS CLASS T MASTER SERVICERS: XXXXX FARGO BANK,
CERTIFICATE: 100% NATIONAL ASSOCIATION AND PRUDENTIAL
ASSET RESOURCES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF AUGUST 1, 2005 SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
CUT-OFF DATE: AUGUST 1, 2005
PAYING AGENT: XXXXX FARGO BANK,
CLOSING DATE: AUGUST 11, 2005 NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
No. T-1 FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO.:
</TABLE>
CLASS T CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT [___________________] is the registered owner of the
interest evidenced by this Certificate in the Class T Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicers
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the percentage
interest in the Class T Certificates specified on the face hereof. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ6 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement.
Distributions on this Certificate will be made out of the Available Distribution
Amount, to the extent and subject to the limitations set forth in the Pooling
and Servicing Agreement, on the 13th day of each month or, if such 13th day is
not a Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Class T Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS T CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-27
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH
TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM
SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT
OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
PERCENTAGE INTEREST OF THIS CLASS R-I SPECIAL SERVICER: CWCAPITAL ASSET
CERTIFICATE: 100% MANAGEMENT LLC
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK,
AS OF AUGUST 1, 2005 NATIONAL ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AUGUST 1, 2005 ASSOCIATION
CLOSING DATE: AUGUST 11, 2005 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005 NO. R-I-1
MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
ASSET RESOURCES, INC.
</TABLE>
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Master Servicers and the Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-I Certificates specified on the face hereof. The
Certificates are designated as Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 13th day of each month or, if such 13th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii)
the termination of the Trust pursuant to Section 10.1(d) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase the
Mortgage Loans and any other property remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-28
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS
A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC,
A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL
UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF
THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES
WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
PERCENTAGE INTEREST OF THIS CLASS R-II SPECIAL SERVICER: CWCAPITAL ASSET
CERTIFICATE: 100% MANAGEMENT LLC
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK,
AS OF AUGUST 1, 2005 NATIONAL ASSOCIATION
CUT-OFF DATE: AUGUST 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: AUGUST 11, 2005
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
NO. R-II-1
MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
ASSET RESOURCES, INC.
</TABLE>
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Master Servicers and the Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-II Certificates specified on the face hereof. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ6 and are issued in the
Classes as specifically set forth in
the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 13th day of each month or, if such 13th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
on or prior to the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-29
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS
IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF, THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR
TRUST WHOSE INCOME FROM SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS
CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH
PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN
AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO
PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
PERCENTAGE INTEREST OF THIS CLASS R-III SPECIAL SERVICER: CWCAPITAL ASSET
CERTIFICATE: 100% MANAGEMENT LLC
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK,
AS OF AUGUST 1, 2005 NATIONAL ASSOCIATION
CUT-OFF DATE: AUGUST 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: AUGUST 11, 2005
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
NO. R-III-1
MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
ASSET RESOURCES, INC.
</TABLE>
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-III Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-III Certificates specified on the face hereof. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ6 and are issued in the
Classes as specifically set forth in
the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 13th day of each month or, if such 13th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
on or prior to the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-30
[FORM OF CLASS X-1 CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 0.054% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-1 ASSET RESOURCES, INC.
CERTIFICATE: $2,754,054,199
SPECIAL SERVICER: CWCAPITAL ASSET
DATE OF POOLING AND SERVICING AGREEMENT: MANAGEMENT LLC
AS OF AUGUST 1, 2005
PAYING AGENT: XXXXX FARGO BANK,
CUT-OFF DATE: AUGUST 1, 2005 NATIONAL ASSOCIATION
CLOSING DATE: AUGUST 11, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-1 CERTIFICATES AS OF THE CLOSING DATE: CUSIP NO.: 61745M 6R 9
$2,754,054,199 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. X-1-1
</TABLE>
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X-1 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 13th day of
each month or, if such 13th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is
exchanged for one or more Regulation S Permanent Global Certificates, the Holder
hereof shall not be entitled to receive payments hereon; until so exchanged in
full, this Regulation S Temporary Global Certificate shall in all other respects
be entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in whole or in
part for one or more Global Certificates only (i) on or after the termination of
the 40-day distribution compliance period (as defined in Regulation S) and (ii)
upon presentation of a Regulation S Certificate (as defined in the Pooling
Agreement) required by Article III of the Pooling and Servicing Agreement. Upon
exchange of this Regulation S Temporary Global Certificate for one or more
Global Certificates, the Trustee shall cancel this Regulation S Temporary Global
Certificate.]
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X-1 Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-31
[FORM OF CLASS X-2 CERTIFICATE]
THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICERS, THE SPECIAL
SERVICER, OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6
<TABLE>
INITIAL PASS-THROUGH RATE: 0.557% MASTER SERVICERS: XXXXX FARGO BANK,
NATIONAL ASSOCIATION AND PRUDENTIAL
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-2 ASSET RESOURCES, INC.
CERTIFICATE: $2,672,241,000
SPECIAL SERVICER: CWCAPITAL ASSET
DATE OF POOLING AND SERVICING AGREEMENT: MANAGEMENT LLC
AS OF AUGUST 1, 2005
PAYING AGENT: XXXXX FARGO BANK,
CUT-OFF DATE: AUGUST 1, 2005 NATIONAL ASSOCIATION
CLOSING DATE: AUGUST 11, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: SEPTEMBER 13, 2005
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-2 CERTIFICATES AS OF THE CLOSING DATE: CUSIP NO.: 61745M 6J 7
$2,672,241,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. X-2-1
</TABLE>
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the
Paying Agent, the Certificate Registrar, the Master Servicers and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X-2 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 13th day of
each month or, if such 13th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X-2 Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicers, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicers, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c)of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED SIGNATORY
Dated: August 11, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: _______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ----------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
----------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange
or another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
August __, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
CWCapital Asset Management LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
SunTrust Bank
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Prudential Mortgage Capital Funding, LLC
[Address]
Prudential Asset Resources, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust (CMBS), Xxxxxx Xxxxxxx 2005-HQ6
Facsimile Number: (000) 000-0000
[Operating Advisor]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the REMIC III Regular Interests.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
CWCapital Asset Management LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
SunTrust Bank
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Prudential Mortgage Capital Funding, LLC
[Address]
Prudential Asset Resources, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust (CMBS), Xxxxxx Xxxxxxx 2005-HQ6
Facsimile Number: (000) 000-0000
[Operating Advisor]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (v), (vi), (viii), (x) and (xii) of the definition of "Mortgage File," and
any documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of "Mortgage File," to the extent known by a
Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement, are in its possession, (b) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the Mortgage Note and the Mortgage,
the street address of the Mortgaged Property and the name of the Mortgagor set
forth in the Mortgage Loan Schedule accurately reflects the information
contained in the documents in the Mortgage File, and (d) each Mortgage Note has
been endorsed. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
contained in each Mortgage File or any of the Trustee Mortgage Loans identified
in the Mortgage Loan Schedule, or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the REMIC III Regular Interests.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6
Re: Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ6
DATE:__________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of August 1,
2005 by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
N.A. and Prudential Asset Resources, Inc., as Master Servicers, CWCapital Asset
Management LLC, as Special Servicer, Xxxxx Fargo Bank, National Association, as
Certificate Registrar and Paying Agent, LaSalle Bank National Association, as
Trustee and ABN AMRO Bank N.V., as Fiscal Agent (the "Pooling and Servicing
Agreement"), the undersigned hereby requests a release of the Trustee Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have been
or will be, following the [Master] [Special] Servicer's release
of the Trustee Mortgage File, credited to the Certificate Account
or the Distribution Account pursuant to the Pooling and Servicing
Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File will
be held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
a Certificate (the "Transferred Certificate") having an initial Certificate
Balance or Notional Amount as of August ___, 2005 (the "Settlement Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of August 1, 2005,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A. and Prudential Asset Resources, Inc., as master servicers, CWCapital
Asset Management LLC, as special servicer, LaSalle Bank National Association, as
Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx Fargo Bank, National
Association, as Certificate Registrar and Paying Agent (in such capacity, the
"Paying Agent"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Certificate under the Securities Act of 1933, as
amended (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Certificate pursuant to the Securities Act or any state securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates having an initial Certificate Balance or Notional
Amount as of August ___, 2005 (the "Settlement Date") of $__________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of August 1, 2005 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A.
and Prudential Asset Resources, Inc., as master servicers, CWCapital Asset
Management LLC, as special servicer, LaSalle Bank National Association, as
Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx Fargo Bank, National
Association, as Certificate Registrar and Paying Agent (in such capacity, the
"Paying Agent"). All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account or
for the account of a Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, (e) any credit enhancement
mechanism associated with the Transferred Certificates and (f) all related
matters that it has requested.
3. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be
made on the Transferred Certificates. The Transferee has attached hereto
either (i) a duly executed IRS Form W-8BEN (or successor form), which
identifies the Transferee as the beneficial owner of the Transferred
Certificates and states that the Transferee is not a U.S. Person, (ii) Form
W-8IMY (with appropriate attachments) or (iii) two duly executed copies of
IRS Form W-8ECI (or successor form), which identify the Transferee as the
beneficial owner of the Transferred Certificates and states that interest
and original issue discount on the Transferred Certificates is, or is
expected to be, effectively connected with a U.S. trade or business. The
Transferee agrees to provide to the Certificate Registrar (or its agent)
updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI, as the case
may be, any applicable successor IRS forms, or such other certifications as
the Certificate Registrar (or its agent) may reasonably request, on or
before the date that any such IRS form or certification expires or becomes
obsolete, or promptly after the occurrence of any event requiring a change
in the most recent IRS form of certification furnished by it to the
Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or
partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United
States, any State thereof or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate the income of which is subject to U.S. federal income taxation
regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust,
and one or more United States fiduciaries have the authority to control all
substantial decisions of such trust (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20,
1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
----------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
_________________________________________________________
_________________________________________________________
_________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
_____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the Transferred
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.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates having an initial Certificate
Balance or Notional Amount as of August ___, 2005 (the "Settlement Date") of
$__________ (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, (the "Pooling and Servicing Agreement") dated as of August 1, 2005,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A. and Prudential Asset Resources, Inc., as master servicers, CWCapital
Asset Management LLC, as special servicer, LaSalle Bank National Association, as
Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx Fargo Bank, National
Association, as Certificate Registrar and Paying Agent (in such capacity, the
"Paying Agent"). All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either: (A) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 to the Pooling and Servicing
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit D-2B to
the Pooling and Servicing Agreement; or (C) an opinion of counsel satisfactory
to the Certificate Registrar with respect to the availability of such exemption
from registration under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class G, Class H or Class J
Certificates), the Transferee understands that each Transferred Certificate will
bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR
TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Certificate, any interest in any
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized or will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to any Certificate,
any interest in any Certificate or any other similar security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
8. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which
identifies the Transferee as the beneficial owner of the Transferred
Certificates and states that the Transferee is not a U.S. Person, (ii) Form
W-8IMY (with appropriate attachments) or (iii) two duly executed copies of IRS
Form W-8ECI (or successor form), which identify the Transferee as the beneficial
owner of the Transferred Certificates and states that interest and original
issue discount on the Transferred Certificates is, or is expected to be,
effectively connected with a U.S. trade or business. The Transferee agrees to
provide to the Certificate Registrar (or its agent) updated IRS Form W-8BEN, IRS
Form W-8IMY or IRS Form W-8ECI, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar (or its agent)
may reasonably request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the occurrence of
any event requiring a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States fiduciaries have
the authority to control all substantial decisions of such trust (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ6 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of August ___, 2005 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2005, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Xxxxx Fargo Bank, N.A. and Prudential Asset Resources, Inc., as master
servicers, CWCapital Asset Management LLC, as special servicer, LaSalle Bank
National Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx
Fargo Bank, National Association, as Certificate Registrar and Paying Agent (in
such capacity, the "Paying Agent"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor, the Trustee and the Paying Agent that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been
and will not be registered under the Securities Act or registered or qualified
under any applicable state securities laws, (b) none of the Depositor, the
Trustee or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
JULY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class G, Class H and Class J
Certificates), the Transferee understands that each Transferred Certificate will
bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate, any interest in any Certificate or any other similar
security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
8. The Transferee is an institutional "accredited investor" as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form
W-8ECI, as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar (or its agent) may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States fiduciaries have
the authority to control all substantial decisions of such trust (or,
to the extent provided in applicable Treasury Regulations, certain trusts in
existence on August 20, 1996 which are eligible to elect to be treated as U.S.
Persons).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ6 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of August ___, 2005 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2005, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Xxxxx Fargo Bank, N.A. and Prudential Asset Resources, Inc., as master
servicers, CWCapital Asset Management LLC, as special servicer, LaSalle Bank
National Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx
Fargo Bank, National Association, as Certificate Registrar and Paying Agent (in
such capacity, the "Paying Agent"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor, the Trustee and the Paying Agent, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that
the sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificate for its own account or for the account of
a qualified institutional buyer, and understands that such Certificate or any
interest therein may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or
(ii) sold or transferred in transactions which are exempt from such registration
and qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
JULY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class G, Class H and Class J
Certificates), the Transferee understands that each Transferred Certificate will
bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
7. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form
W-8ECI, as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar (or its agent) may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States fiduciaries have
the authority to control all substantial decisions of such trust (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(2) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
----------
(2) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
___ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005- HQ6, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement as amended and restated pursuant to which the Residual Certificates
were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee (i) is, and as of the date of transfer will be, a
"Qualified Institutional Buyer" and will endeavor to remain a "Qualified
Institutional Buyer" for so long as it holds the Residual Certificates, and (ii)
is acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Qualified Institutional Buyer"
is a qualified institutional buyer qualifying pursuant to Rule 144A under the
Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such
transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
5. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
7. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
8. The Transferee's taxpayer identification number is _______________.
9. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(F) of Section 3.3(e)
which authorizes the Paying Agent or the Trustee to deliver payments on the
Residual Certificate to a Person other than the Transferee and clause (ii)(G) of
Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
10. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
11. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
12. The Transferee will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment or fixed
base, within the meaning of any applicable income tax treaty, of such proposed
Transferee or any other United States Tax Person.
13. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
14. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
15. [Select a or b, as applicable] [a] The Transferee has computed any
consideration paid to it to acquire the Class R Certificate in accordance with
U.S. Treasury Regulations Sections 1.860E-1(c)(7) and 1.860E-1(c)(8) by
computing present values using a discount rate equal to the Federal short-term
rate prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
[b] The transfer of the Class R Certificate complies with Treasury
Regulation Sections 1.860E-1(c)(5) and 1.860E-1(c)(6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Treasury Regulation Section 1.860E-1(c)(6), as to which income from the Class R
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the Transferee's fiscal year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning of Treasury
Regulation Section 1.860E-1(c)(6)(ii) and excluding any other asset if a
principal purpose for holding or acquiring that asset is to permit the
Transferee to satisfy this Section 15(ii)) in excess of $100 million and net
assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to
another "eligible corporation," as defined in Treasury Regulation Section
1.860E-1(c)(6), in a transaction that satisfies the requirements of Treasury
Regulation Section 1.860E-1(c)(i), (ii), and (iii) and this Section 15 and the
transfer is not to a foreign permanent establishment (within the meaning of an
applicable income tax treaty) of such eligible corporation or any other
arrangement by which the Class R Certificate will be at any time subject to net
tax by a foreign country or possession of the United States; and
(iv) the Transferee determined the consideration paid to it to acquire
the Class R Certificate, based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith, is a reasonable amount.
16. The Transferee (i) is, and at the time of transfer will be, a
United States Tax Person and (ii) is not, and at the time of the transfer will
not be, a foreign permanent establishment or fixed base, within the meaning of
any applicable income tax treaty, of any United States Tax Person. If the
Transferee is a partnership trust or disregarded entity for U.S. federal income
tax purposes, then each person that may be allocated income from the Class R
Certificate is, and at the time of transfer will be, a United States Tax Person.
17. The Transferee has historically paid its debts as they have come
due and will continue to do so in the future.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this ___
day of ___________, ____.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 20__
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
6th and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ6 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of August 1, 2005 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A. and Prudential Asset Resources, Inc., as
master servicers, CWCapital Asset Management LLC, as special servicer, LaSalle
Bank National Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent and
Xxxxx Fargo Bank, National Association, as Certificate Registrar and Paying
Agent (in such capacity, the "Paying Agent"). All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
4. The Transferor does not know and has no reason to know that the
Transferee is not a Permitted Transferee, is not a United States Tax Person, is
a foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty, of any United States Tax Person, or is a Person
with respect to which income on the Residual Certificate is attributable to a
foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty.
5. The Transferor does not know and has no reason to know that the
Transferee will not honor the restrictions on subsequent transfers by the
Transferee under the Transfer Affidavit and Agreement, delivered in connection
with this transfer.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6, CLASS __ (THE "CERTIFICATES")
TO: Euroclear System
or
CLEARSTREAM
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Certificates held by you or on your behalf for our
account are beneficially owned by (a) non -U.S person(s) or (b) U.S. person(s)
who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of such
beneficial interest in the above Certificates in respect of which we are not
able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 2005
By:
------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G-1
[RESERVED]
EXHIBIT G-2
[RESERVED]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association and Prudential Asset Resources,
Inc., as Master Servicers
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
LaSalle Bank National Association,
as Trustee
This is to notify you as to the transfer of the beneficial interest in
$_______________ of Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made in
accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such
purchaser has acquired the Certificates in a transaction effected in accordance
with the exemption from the registration requirements of the Securities Act
provided by Rule 144A and, if the purchaser has purchased the Certificates for
one or more accounts for which it is acting as fiduciary or agent, each such
account is a qualified institutional buyer or an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act][an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and in
accordance with any applicable securities laws of any state of the United States
and, if the purchaser has purchased the Certificates for one or more accounts
for which it is acting as fiduciary or agent, each such account is a qualified
institutional buyer or an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the
purchaser is acquiring beneficial interests in the applicable Certificate(3) for
its own account or for one or more institutional accounts for which it is acting
as fiduciary or agent in a minimum amount equivalent to not less than
U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess thereof for
each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
------------------------------------
[Name], [Chief Financial or other
Executive Officer]
----------
(3) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON
ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN
GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6, CLASS ___ (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS) MAC #N9309-121
LaSalle Bank National Association, as Trustee
Attn: Asset Backed Securities Trust Services Group
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ6
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of August 1, 2005 (the "Pooling and Servicing
Agreement") among you, Xxxxxx Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo
Bank, National Association and Prudential Asset resources, Inc.., as master
servicers and CWCapital Asset Management LLC, as special servicer, U.S.
$__________ principal amount of the above-captioned Certificates held by us or
on our behalf are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions that did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: ____________
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, Brussels office, as operator
of the Euroclear System]
or
[CLEARSTREAM]
By:
------------------------------------
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
See Mortgage Loan Schedules (Schedules I, II, III and IV to this Agreement)
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT (MSMC)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 29, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................2
2. CONVEYANCE OF MORTGAGE LOANS.............................................2
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..................14
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER...18
6. CLOSING.................................................................25
7. CLOSING DOCUMENTS.......................................................26
8. COSTS...................................................................29
9. NOTICES.................................................................29
10. SEVERABILITY OF PROVISIONS..............................................30
11. FURTHER ASSURANCES......................................................30
12. SURVIVAL................................................................30
13. GOVERNING LAW...........................................................30
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................31
15. MISCELLANEOUS...........................................................31
16. ENTIRE AGREEMENT........................................................31
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................16
Agreement......................................................................1
Certificate Purchase Agreement.................................................1
Certificates...................................................................1
Closing Date...................................................................2
Collateral Information........................................................10
Crossed Mortgage Loans........................................................16
Defective Mortgage Loan.......................................................16
Final Judicial Determination..................................................18
Indemnification Agreement.....................................................12
Initial Purchaser..............................................................1
Material Breach...............................................................15
Material Document Defect......................................................15
Memorandum.....................................................................1
Mortgage File..................................................................3
Mortgage Loan Schedule.........................................................2
Mortgage Loans.................................................................1
Officer's Certificate..........................................................6
Pooling and Servicing Agreement................................................1
Private Certificates...........................................................1
Prospectus Supplement..........................................................1
Public Certificates............................................................1
Purchaser......................................................................1
Repurchased Loan..............................................................16
Seller.........................................................................1
Special Servicer...............................................................1
Trust..........................................................................1
Trustee........................................................................1
Underwriters...................................................................1
Underwriting Agreement.........................................................1
i
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 29,
2005, between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"), and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August 1, 2005, between Purchaser, as
depositor, Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo
Bank, National Association, as a master servicer, CWCapital Asset Management
LLC, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent,
and Xxxxx Fargo Bank, National Association, as paying agent and certificate
registrar. In exchange for the Mortgage Loans, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement. The term
"Master Servicer" as used herein shall mean Xxxxx Fargo Bank, National
Association in its capacity as a master servicer under the Pooling and Servicing
Agreement unless otherwise specified.
The Class A-1, Class A-1A, Class A-2A, Class A-2B, Class A-AB, Class
A-3, Class A-4A, Class A-4B, Class X-2, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, Banc of America Securities LLC,
Greenwich Capital Markets, Inc. and SunTrust Capital Markets, Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated July 29, 2005 (the "Underwriting Agreement"), and the
Class X-1, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class
R-III Certificates (the "Private Certificates") will be sold by Purchaser to
Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial Purchaser,
dated July 29, 2005 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 7, 2005, as supplemented by a Prospectus Supplement dated July 29,
2005 (together with the Prospectus, the "Prospectus Supplement"), and the
Initial Purchaser will offer the Private Certificates for sale in transactions
exempt from the registration requirements of the Securities Act of 1933 pursuant
to a Private Placement Memorandum dated July 29, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1
I. AGREEMENT TO PURCHASE.
A. SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING
RELEASED BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE
LOAN SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS AUGUST 1, 2005.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $1,828,518,732. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON AUGUST 11, 2005 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
B. ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND INTEREST
IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS AGREEMENT (TO THE
EXTENT SET FORTH IN SECTION 14).
II. CONVEYANCE OF MORTGAGE LOANS.
A. EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE
CONSIDERATION REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE
CONDITIONS SPECIFIED IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER,
ASSIGN, SET OVER AND OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS
SPECIFICALLY PROVIDED HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH
THE UNDERSTANDING THAT A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED
AUGUST 1, 2005, WILL BE EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO
THE MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING
DATE. THE MORTGAGE LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR
PRIOR TO THE CLOSING DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT
AND THE POOLING AND SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND
ASSIGNMENT, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF
PURCHASER, ON OR PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN
CLAUSE 2.2.1 HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH
BUSINESS DAY AFTER THE CLOSING DATE, FIVE LIMITED
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POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE THAT NO SUCH POWER OF
ATTORNEY SHALL BE USED WITH RESPECT TO ANY MORTGAGE LOAN BY OR UNDER
AUTHORIZATION BY ANY PARTY HERETO EXCEPT TO THE EXTENT THAT THE ABSENCE OF A
DOCUMENT DESCRIBED IN THE SECOND PRECEDING SENTENCE WITH RESPECT TO SUCH
MORTGAGE LOAN REMAINS UNREMEDIED AS OF THE EARLIER OF (I) THE DATE THAT IS 180
DAYS FOLLOWING THE DELIVERY OF NOTICE OF SUCH ABSENCE TO SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
B. ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE
ARE TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT
ALL TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6,
3
WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE ORIGINAL MORTGAGE NOTE
IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH A COPY OF THE MORTGAGE
NOTE ATTACHED THERETO;
2. THE ORIGINAL MORTGAGE, WITH EVIDENCE OF RECORDING THEREON, AND, IF THE
MORTGAGE WAS EXECUTED PURSUANT TO A POWER OF ATTORNEY, A CERTIFIED TRUE COPY OF
THE POWER OF ATTORNEY CERTIFIED BY THE PUBLIC RECORDER'S OFFICE, WITH EVIDENCE
OF RECORDING THEREON (IF RECORDING IS CUSTOMARY IN THE JURISDICTION IN WHICH
SUCH POWER OF ATTORNEY WAS EXECUTED), OR CERTIFIED BY A TITLE INSURANCE COMPANY
OR ESCROW COMPANY TO BE A TRUE COPY THEREOF; PROVIDED THAT IF SUCH ORIGINAL
MORTGAGE CANNOT BE DELIVERED WITH EVIDENCE OF RECORDING THEREON ON OR PRIOR TO
THE 45TH DAY FOLLOWING THE CLOSING DATE BECAUSE OF A DELAY CAUSED BY THE PUBLIC
RECORDING OFFICE WHERE SUCH ORIGINAL MORTGAGE HAS BEEN DELIVERED FOR RECORDATION
OR BECAUSE SUCH ORIGINAL MORTGAGE HAS BEEN LOST, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL MORTGAGE THAT HAS BEEN LOST AFTER
RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY RECORDING OFFICE WHERE
SUCH MORTGAGE IS RECORDED THAT SUCH COPY IS A TRUE AND COMPLETE COPY OF THE
ORIGINAL RECORDED MORTGAGE;
3. THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) IN
THE CASE OF AN ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT THAT
HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY
RECORDING OFFICE WHERE SUCH DOCUMENT IS RECORDED THAT SUCH COPY IS A TRUE AND
COMPLETE COPY OF THE ORIGINAL RECORDED MODIFICATION, CONSOLIDATION OR EXTENSION
AGREEMENT, AND THE ORIGINALS OF ALL ASSUMPTION AGREEMENTS, IF ANY;
4
4. AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I
INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6," PROVIDED,
IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH ASSIGNMENTS WILL BE
REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND INSTEAD, SELLER SHALL TAKE
ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF
THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF
RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND
SHALL DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS
SHOWN AS THE OWNER ON THE RECORD OF MERS;
5. ORIGINALS OF ALL INTERVENING ASSIGNMENTS OF MORTGAGE (EXCEPT WITH
RESPECT TO ANY MORTGAGE THAT HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEES), IF ANY, WITH EVIDENCE OF RECORDING THEREON OR, IF SUCH ORIGINAL
ASSIGNMENTS OF MORTGAGE HAVE BEEN DELIVERED TO THE APPROPRIATE RECORDER'S OFFICE
FOR RECORDATION, CERTIFIED TRUE COPIES OF SUCH ASSIGNMENTS OF MORTGAGE CERTIFIED
BY SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY SELLER OR, IF ANY
ORIGINAL INTERVENING ASSIGNMENT OF MORTGAGE HAS NOT YET BEEN RETURNED ON OR
PRIOR TO THE 45TH DAY FOLLOWING THE CLOSING DATE FROM THE APPLICABLE RECORDING
OFFICE OR HAS BEEN LOST, A TRUE AND CORRECT COPY THEREOF, TOGETHER WITH (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE THAT HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE
APPROPRIATE COUNTY RECORDING OFFICE WHERE SUCH ASSIGNMENT IS RECORDED THAT SUCH
COPY IS A TRUE AND COMPLETE COPY OF THE ORIGINAL RECORDED INTERVENING ASSIGNMENT
OF MORTGAGE;
6. IF THE RELATED ASSIGNMENT OF LEASES IS SEPARATE FROM THE MORTGAGE, THE
ORIGINAL OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF RECORDING THEREON OR, IF
SUCH ASSIGNMENT OF LEASES HAS NOT BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY
OF SUCH ASSIGNMENT OF LEASES CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
AN ORIGINAL OF EACH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF
RECORDING THEREON AND SHOWING A COMPLETE RECORDED CHAIN OF ASSIGNMENT FROM THE
NAMED ASSIGNEE TO
5
THE HOLDER OF RECORD, AND IF ANY SUCH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES
HAS NOT BEEN RETURNED FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY OF
SUCH ASSIGNMENT CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX
CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6,"
WHICH ASSIGNMENT MAY BE EFFECTED IN THE RELATED ASSIGNMENT OF MORTGAGE,
PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEE, NO ASSIGNMENT OF ASSIGNMENT OF LEASES IN FAVOR OF THE TRUSTEE WILL BE
REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL ACTIONS
AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE RELATED
MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING TRANSFERS
OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL DELIVER TO THE
SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON
THE RECORD OF MERS;
7. THE ORIGINAL OR A COPY OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL
SECURITY FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
8. THE ORIGINAL TITLE INSURANCE POLICY, OR IN THE EVENT SUCH ORIGINAL TITLE
INSURANCE POLICY HAS NOT BEEN ISSUED, AN ORIGINAL BINDER OR ACTUAL TITLE
COMMITMENT OR A COPY THEREOF CERTIFIED BY THE TITLE COMPANY WITH THE ORIGINAL
TITLE INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE OR A
PRELIMINARY TITLE REPORT WITH AN ORIGINAL TITLE INSURANCE POLICY TO FOLLOW
WITHIN 180 DAYS OF THE CLOSING DATE;
9. (A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS
THE OWNER ON THE RECORD OF MERS;
10. COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH
6
GROUND LEASE AND THERE IS A LIEN IN FAVOR OF THE MORTGAGEE IN SUCH LEASE;
11. COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
12. EITHER (A) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE ASSIGNED AND
DELIVERED TO THE TRUSTEE ON BEHALF OF THE TRUST WITH A COPY TO BE HELD BY THE
MASTER SERVICER, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY,
CONSTITUTING ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD
BY THE MASTER SERVICER ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE HELD BY THE
TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH DOCUMENTS
EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND SERVICING
AGREEMENT (IT BEING UNDERSTOOD THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF
SUCH LETTER OF CREDIT BELONG TO THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE
CLOSING DATE, THE BANK ISSUING THE LETTER OF CREDIT THAT THE LETTER OF CREDIT
AND THE PROCEEDS THEREOF BELONG TO THE TRUST, AND TO USE REASONABLE EFFORTS TO
OBTAIN WITHIN 30 DAYS (BUT IN ANY EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE
CLOSING DATE, AN ACKNOWLEDGEMENT THEREOF BY THE BANK (WITH A COPY OF SUCH
ACKNOWLEDGEMENT TO BE SENT TO THE TRUSTEE) AND (C) TO INDEMNIFY THE TRUST FOR
ANY LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE
FAILURE OF SELLER TO ASSIGN THE LETTER OF CREDIT HEREUNDER). IN THE CASE OF
CLAUSE (B) ABOVE, ANY LETTER OF CREDIT HELD BY THE MASTER SERVICER SHALL BE HELD
IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE MASTER SERVICER SELLS ITS
RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN, THE MASTER SERVICER HAS AGREED
TO ASSIGN THE APPLICABLE LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF
THE SPECIAL SERVICER TO SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH
CASE, AT THE EXPENSE OF THE MASTER SERVICER. THE MASTER SERVICER HAS AGREED TO
INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE INEFFECTIVENESS OF SUCH
ASSIGNMENT;
13. THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
14. COPIES OF THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH
OTHER MORTGAGED PROPERTIES SECURING MORTGAGE
7
LOANS WITH A CUT-OFF DATE PRINCIPAL BALANCE EQUAL TO OR GREATER THAN
$20,000,000;
15. ANY ENVIRONMENTAL INSURANCE POLICY; AND
16. ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Master Servicer or the Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to the Master Servicer within 30 days of the Closing Date.
Any failure to deliver any ground lease shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
C. THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED
TO IN SECTIONS 2.2.4 AND 2.2.6 MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH THE THIRD SUCCEEDING PARAGRAPH, THE ASSIGNMENTS OF MORTGAGES,
THE ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
D. IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN,
ANY OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3,
2.2.5 OR 2.2.6, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN
DELIVERED FOR RECORDATION WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A
PHOTOCOPY THEREOF (CERTIFIED BY THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A
TRUE AND COMPLETE COPY OF THE ORIGINAL THEREOF
8
SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY PERIOD, SELLER SHALL
THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE RECORDED DOCUMENT (OR
WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE TRUSTEE MAY CONSENT TO,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG AS SELLER IS, AS
CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY, IN GOOD FAITH
ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE SUCH ORIGINAL
OR PHOTOCOPY).
E. THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE THEREON AFTER THE CUT-OFF DATE, ALL OTHER
PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER THAN SCHEDULED
PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL PAYMENTS OF
INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON THE CUT-OFF
DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR BEFORE THE
CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO SELLER.
F. WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR REAL PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4
AND 2.2.6(II) ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL
DELIVER AND PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE
TO BE SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED
TO IN CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED
UNRECORDED OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER
SHALL PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT
ITS OWN EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY
THE TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
G. DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS
SUBCONTRACTORS THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE
DELIVERED TO THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF
THE MASTER SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER
THE CLOSING DATE.
H. THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER SHALL INCLUDE,
TO THE EXTENT REQUIRED TO BE (AND ACTUALLY) DELIVERED TO SELLER PURSUANT TO THE
APPLICABLE MORTGAGE LOAN DOCUMENTS, COPIES OF THE FOLLOWING ITEMS: THE MORTGAGE
NOTE, ANY MORTGAGE, THE ASSIGNMENT OF LEASES AND THE ASSIGNMENT OF
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MORTGAGE, ANY GUARANTY/INDEMNITY AGREEMENT, ANY LOAN AGREEMENT, THE INSURANCE
POLICIES OR CERTIFICATES, AS APPLICABLE, THE PROPERTY INSPECTION REPORTS, ANY
FINANCIAL STATEMENTS ON THE PROPERTY, ANY ESCROW ANALYSIS, THE TAX BILLS, THE
APPRAISAL, THE ENVIRONMENTAL REPORT, THE ENGINEERING REPORT, THE ASSET SUMMARY,
FINANCIAL INFORMATION ON THE BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF
CREDIT, ANY INTERCREDITOR AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES.
I. UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS OF THE TYPE SET FORTH IN SECTION 2.8
ABOVE WITH RESPECT TO THE RELATED MORTGAGE LOAN PREPARED BY OR THAT COME INTO
THE POSSESSION OF SELLER SHALL IMMEDIATELY VEST IN PURCHASER AND ITS ASSIGNS,
AND SHALL BE DELIVERED PROMPTLY BY SELLER TO OR ON BEHALF OF EITHER THE TRUSTEE
OR THE MASTER SERVICER AS SET FORTH HEREIN. SELLER'S AND PURCHASER'S RECORDS
SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER TO PURCHASER AND
ITS ASSIGNS AS A SALE.
J. IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, OR IF FOR ANY OTHER
REASON THIS AGREEMENT IS HELD OR DEEMED TO CREATE A SECURITY INTEREST IN THE
MORTGAGE LOANS OR ANY RELATED PROPERTY, THEN:
1. THIS AGREEMENT SHALL BE DEEMED TO BE A SECURITY AGREEMENT; AND
2. THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
A. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT AND INVESTMENT PROPERTY CONSISTING OF, ARISING
FROM OR RELATING TO
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ANY OF THE FOLLOWING PROPERTY: THE MORTGAGE LOANS IDENTIFIED ON THE
MORTGAGE LOAN SCHEDULE, INCLUDING THE RELATED MORTGAGE NOTES, MORTGAGES,
SECURITY AGREEMENTS, AND TITLE, HAZARD AND OTHER INSURANCE POLICIES, ALL
DISTRIBUTIONS WITH RESPECT THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL
SUBSTITUTE OR REPLACEMENT MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT
THERETO, AND THE MORTGAGE FILES;
B. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT, INVESTMENT PROPERTY AND OTHER RIGHTS ARISING
FROM OR BY VIRTUE OF THE DISPOSITION OF, OR COLLECTIONS WITH RESPECT TO, OR
INSURANCE PROCEEDS PAYABLE WITH RESPECT TO, OR CLAIMS AGAINST OTHER PERSONS
WITH RESPECT TO, ALL OR ANY PART OF THE COLLATERAL DESCRIBED IN CLAUSE (A)
ABOVE (INCLUDING ANY ACCRUED DISCOUNT REALIZED ON LIQUIDATION OF ANY
INVESTMENT PURCHASED AT A DISCOUNT); AND
C. ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
K. THE POSSESSION BY PURCHASER OR ITS DESIGNEE OF THE MORTGAGE NOTES, THE
MORTGAGES, AND SUCH OTHER GOODS, LETTERS OF CREDIT, ADVICES OF CREDIT,
INSTRUMENTS, MONEY, DOCUMENTS, CHATTEL PAPER OR CERTIFICATED SECURITIES SHALL BE
DEEMED TO BE POSSESSION BY THE SECURED PARTY OR POSSESSION BY A PURCHASER FOR
PURPOSES OF PERFECTING THE SECURITY INTEREST PURSUANT TO THE UNIFORM COMMERCIAL
CODE (INCLUDING, WITHOUT LIMITATION, SECTIONS 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
L. NOTIFICATIONS TO PERSONS HOLDING SUCH PROPERTY, AND ACKNOWLEDGMENTS,
RECEIPTS, OR CONFIRMATIONS FROM PERSONS HOLDING SUCH PROPERTY, SHALL BE DEEMED
TO BE NOTIFICATIONS TO, OR ACKNOWLEDGMENTS, RECEIPTS OR CONFIRMATIONS FROM,
SECURITIES INTERMEDIARIES, BAILEES OR AGENTS OF, OR PERSONS HOLDING FOR,
PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
M. SELLER SHALL, TO THE EXTENT CONSISTENT WITH THIS AGREEMENT AND UPON REQUEST
BY OR ON BEHALF OF PURCHASER, TAKE SUCH REASONABLE ACTIONS AS MAY BE NECESSARY
TO ENSURE THAT, IF THIS AGREEMENT WERE DEEMED TO CREATE A SECURITY INTEREST IN
THE PROPERTY DESCRIBED ABOVE, SUCH SECURITY INTEREST WOULD BE DEEMED TO BE A
PERFECTED SECURITY INTEREST OF FIRST PRIORITY UNDER APPLICABLE LAW AND WILL BE
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MAINTAINED AS SUCH THROUGHOUT THE TERM OF THE AGREEMENT. IN SUCH CASE, SELLER
SHALL FILE ALL FILINGS NECESSARY TO MAINTAIN THE EFFECTIVENESS OF ANY ORIGINAL
FILINGS NECESSARY UNDER THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
JURISDICTION TO PERFECT SUCH SECURITY INTEREST IN SUCH PROPERTY. IN CONNECTION
HEREWITH, PURCHASER SHALL HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY
AND CREDITOR UNDER THE UNIFORM COMMERCIAL CODE AS IN FORCE IN THE RELEVANT
JURISDICTION.
N. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE LOAN AS TO
WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1) REQUIRED TO BE
DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER PURSUANT TO THIS
SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR IS NOT PROPERLY
EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE OF THE RELATED
MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A WAIVER OF SUCH
OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND ASSIGNS' RIGHTS IN
RESPECT THEREOF PURSUANT TO SECTION 5.
III. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW. A. SELLER SHALL (I)
DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE ACCEPTABLE TO
PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS AS MAY BE
REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR FILES
(COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS PROPOSED
TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE
LOANS PURSUANT TO SECTION 5 HEREOF.
B. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
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CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER WITH ANY ADDITIONAL INFORMATION IDENTIFIED BY THE
MASTER SERVICER AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT
THAT SUCH INFORMATION IS AVAILABLE.
C. PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE
DESIGNEES OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF
THE IDENTITY OF SUCH DESIGNEE OR AGENT.
D. PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE SUCH INFORMATION. IF
PURCHASER IS REQUIRED TO DISCLOSE IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE PRECEDING
SENTENCE, PURCHASER SHALL PROVIDE TO SELLER A COPY OF THE PROPOSED FORM OF SUCH
DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE AND SELLER SHALL PROMPTLY, AND IN ANY
EVENT WITHIN TWO BUSINESS DAYS, NOTIFY PURCHASER OF ANY INACCURACIES THEREIN, IN
WHICH CASE PURCHASER SHALL MODIFY SUCH FORM IN A MANNER THAT CORRECTS SUCH
INACCURACIES. IF PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE SECOND PRECEDING
SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
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COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
IV. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
A. TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN (SUBJECT
TO THE LAST PARAGRAPH OF THIS SECTION 4.1) AS OF THE DATE HEREOF (OR AS OF SUCH
OTHER DATE SPECIFICALLY SET FORTH IN THE PARTICULAR REPRESENTATION AND WARRANTY)
EACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT
AS OTHERWISE SET FORTH ON SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER
REPRESENTS AND WARRANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
1. SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A CORPORATION IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF NEW YORK. SELLER HAS THE REQUISITE
POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO TRANSFER
AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER AND
AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS CONTEMPLATED BY,
AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT
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SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF THE PROVISIONS OF
THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER
APPLICABLE SECURITIES LAWS.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
4. NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SUBSECTION 4.1.3, ANY LAW, RULE, REGULATION, ORDER, JUDGMENT,
WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES
CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR
CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER
OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
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5. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
6. ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
7. TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED JULY 29, 2005, BETWEEN SELLER, PURCHASER, THE
UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
RELATING TO THE MORTGAGE LOANS DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS
SUBPARAGRAPH 4.1.7 SHALL RUN EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO
OTHER PARTY.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
B. TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS
AND WARRANTS TO SELLER AS OF THE DATE HEREOF:
1. PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
2. PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS
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AGREEMENT. PURCHASER HAS DULY AND VALIDLY AUTHORIZED THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND HAS DULY AND VALIDLY EXECUTED AND DELIVERED
THIS AGREEMENT. THIS AGREEMENT, ASSUMING DUE AUTHORIZATION, EXECUTION AND
DELIVERY BY SELLER, CONSTITUTES THE VALID AND BINDING OBLIGATION OF PURCHASER,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER SUCH
ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
4. NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER,
OR RESULT IN A BREACH OF, ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR
INDENTURE TO WHICH PURCHASER IS A PARTY OR THAT MAY BE APPLICABLE TO PURCHASER
OR ITS ASSETS.
5. PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
6. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL
17
CONDITION OF PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF
PURCHASER TO PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
7. PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
V. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
A. IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE
TRUSTEE ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY
OF PURCHASER'S ASSIGNMENT OF ITS RIGHTS HEREUNDER TO THE TRUSTEE, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO (EACH AS OF THE
DATE HEREOF UNLESS OTHERWISE SPECIFIED).
B. IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE
DELIVERED TO THE TRUSTEE PURSUANT TO SECTION 2 IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE SUCH
DEFECT OR BREACH, EITHER (I) MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF
THE HOLDERS OF THE CERTIFICATES IN THE RELATED MORTGAGE LOAN, OR (II) BOTH (A)
THE DOCUMENT DEFECT OR BREACH MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE
MORTGAGE LOAN AND (B) THE MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR
REHABILITATED MORTGAGE LOAN (SUCH A DOCUMENT DEFECT DESCRIBED IN THE PRECEDING
CLAUSE (I) OR (II), A "MATERIAL DOCUMENT DEFECT" AND SUCH A BREACH DESCRIBED IN
THE PRECEDING CLAUSE (I) OR (II) A "MATERIAL BREACH"), THE PARTY DISCOVERING
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH SHALL PROMPTLY NOTIFY, IN
WRITING, THE OTHER PARTIES; PROVIDED THAT ANY BREACH OF
18
THE REPRESENTATION AND WARRANTY CONTAINED IN PARAGRAPH (41) OF SUCH EXHIBIT 2
SHALL CONSTITUTE A MATERIAL BREACH ONLY IF SUCH PREPAYMENT PREMIUM OR YIELD
MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY" FOR COMMERCIAL MORTGAGE LOANS AS
EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO SUCH EFFECT OR (II) A
DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH PROVISION IS NOT
CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) UPON BECOMING
AWARE OF ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, THE MASTER
SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT LATER
THAN 90 DAYS FROM SELLER'S RECEIPT OF THE NOTICE OF SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH, CURE SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL
BREACH, AS THE CASE MAY BE, IN ALL MATERIAL RESPECTS; PROVIDED, HOWEVER, THAT IF
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, CANNOT BE
CORRECTED OR CURED IN ALL MATERIAL RESPECTS WITHIN SUCH 90 DAY PERIOD, AND SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH WOULD NOT CAUSE THE MORTGAGE LOAN TO
BE OTHER THAN A "QUALIFIED MORTGAGE"(AS DEFINED IN THE CODE) BUT SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL
DOCUMENT DEFECT, (X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE
LOAN AND A SERVICING TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY
DEFAULT OR AS DESCRIBED IN CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF
"SERVICING TRANSFER EVENT" IN THE POOLING AND SERVICING AGREEMENT AND (Y) THE
MATERIAL DOCUMENT DEFECT WAS IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER
BY THE TRUSTEE PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT
NOT LESS THAN 90 DAYS PRIOR TO THE DELIVERY OF THE NOTICE OF SUCH MATERIAL
DOCUMENT DEFECT. THE PARTIES ACKNOWLEDGE THAT NEITHER DELIVERY OF A
CERTIFICATION OR SCHEDULE OF EXCEPTIONS TO SELLER PURSUANT TO SECTION 2.2 OF THE
POOLING AND SERVICING AGREEMENT OR OTHERWISE NOR POSSESSION OF SUCH
CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN AND OF ITSELF, CONSTITUTE DELIVERY
OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR KNOWLEDGE OR AWARENESS BY SELLER OF
ANY MATERIAL DOCUMENT DEFECT LISTED THEREIN.
C. SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH CANNOT BE CORRECTED OR CURED WITHIN THE ABOVE CURE PERIODS,
SELLER SHALL, ON OR BEFORE THE TERMINATION OF SUCH CURE PERIODS, EITHER (I)
REPURCHASE THE AFFECTED MORTGAGE LOAN OR REO MORTGAGE LOAN FROM PURCHASER OR ITS
ASSIGNEE AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT, OR (II) IF WITHIN THE THREE-MONTH PERIOD COMMENCING ON THE CLOSING
DATE (OR WITHIN THE TWO-YEAR PERIOD COMMENCING ON THE CLOSING DATE IF THE
RELATED MORTGAGE LOAN IS A
19
"DEFECTIVE OBLIGATION" WITHIN THE MEANING OF SECTION 860G(A)(4)(B)(II) OF THE
CODE AND TREASURY REGULATION SECTION 1.860G-2(F)), AT ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN. IF SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH WOULD CAUSE THE MORTGAGE LOAN TO BE OTHER THAN A
"QUALIFIED MORTGAGE" (AS DEFINED IN THE CODE), THEN NOTWITHSTANDING THE PREVIOUS
SENTENCE OR THE PREVIOUS PARAGRAPH, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
D. IF (X) A MORTGAGE LOAN IS TO BE REPURCHASED OR REPLACED AS CONTEMPLATED ABOVE
(A "DEFECTIVE MORTGAGE LOAN"), (Y) SUCH DEFECTIVE MORTGAGE LOAN IS
CROSS-COLLATERALIZED AND CROSS-DEFAULTED WITH ONE OR MORE OTHER MORTGAGE LOANS
("CROSSED MORTGAGE LOANS") AND (Z) THE APPLICABLE DOCUMENT DEFECT OR BREACH DOES
NOT CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY
BE, AS TO SUCH CROSSED MORTGAGE LOANS (WITHOUT REGARD TO THIS PARAGRAPH), THEN
THE APPLICABLE DOCUMENT DEFECT OR BREACH (AS THE CASE MAY BE) SHALL BE DEEMED TO
CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, AS
TO EACH SUCH CROSSED MORTGAGE LOAN FOR PURPOSES OF THE ABOVE PROVISIONS, AND
SELLER SHALL BE OBLIGATED TO REPURCHASE OR REPLACE EACH SUCH CROSSED MORTGAGE
LOAN IN ACCORDANCE WITH THE PROVISIONS ABOVE, UNLESS, IN THE CASE OF SUCH BREACH
OR DOCUMENT DEFECT, (A) SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE
TRUSTEE AT THE EXPENSE OF SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE
TRUSTEE, IT WOULD BE USUAL AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO
OBTAIN A NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS
WOULD BE SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE
LOANS AS TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED
WITHOUT REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (EXCLUDING THE AFFECTED
LOAN(S)) FOR THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR
REPLACEMENT IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (INCLUDING THE AFFECTED
LOANS(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT AND (B) THE
DEBT SERVICE COVERAGE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOAN(S)) FOR THE FOUR PRECEDING CALENDAR QUARTERS PRECEDING THE
REPURCHASE OR REPLACEMENT, AND (II) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED
MORTGAGE LOANS (EXCLUDING THE AFFECTED LOAN(S)) IS NOT GREATER THAN THE GREATER
OF (A) THE LOAN-TO-VALUE RATIO, EXPRESSED AS A WHOLE NUMBER (TAKEN TO
20
ONE DECIMAL PLACE), FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED
LOAN(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT PLUS 10% AND
(B) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOANS(S)), AT THE TIME OF REPURCHASE OR REPLACEMENT. THE DETERMINATION
OF THE MASTER SERVICER AS TO WHETHER THE CONDITIONS SET FORTH ABOVE HAVE BEEN
SATISFIED SHALL BE CONCLUSIVE AND BINDING IN THE ABSENCE OF MANIFEST ERROR. THE
MASTER SERVICER WILL BE ENTITLED TO CAUSE TO BE DELIVERED, OR DIRECT SELLER TO
(IN WHICH CASE SELLER SHALL) CAUSE TO BE DELIVERED TO THE MASTER SERVICER, AN
APPRAISAL OF ANY OR ALL OF THE RELATED MORTGAGED PROPERTIES FOR PURPOSES OF
DETERMINING WHETHER THE CONDITION SET FORTH IN CLAUSE (II) ABOVE HAS BEEN
SATISFIED, IN EACH CASE AT THE EXPENSE OF SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
E. WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER) CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND
PURCHASER HEREBY AGREE TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE
OTHER'S PRIMARY COLLATERAL BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY
COLLATERAL SECURING THEIR RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO
THE TRUSTEE, THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOANS STILL HELD BY
THE TRUSTEE, SO LONG AS SUCH EXERCISE DOES NOT IMPAIR THE ABILITY OF THE OTHER
PARTY TO EXERCISE ITS REMEDIES AGAINST ITS PRIMARY COLLATERAL. IF THE EXERCISE
OF REMEDIES BY ONE PARTY WOULD IMPAIR THE ABILITY OF THE OTHER PARTY TO EXERCISE
ITS REMEDIES WITH RESPECT TO THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOAN
OR MORTGAGE LOANS HELD BY SUCH PARTY, THEN BOTH PARTIES SHALL FORBEAR FROM
EXERCISING SUCH REMEDIES UNTIL THE LOAN DOCUMENTS EVIDENCING AND SECURING THE
RELEVANT MORTGAGE LOANS CAN BE MODIFIED IN A MANNER THAT COMPLIES WITH THE
POOLING AND SERVICING AGREEMENT TO REMOVE THE THREAT OF IMPAIRMENT AS A RESULT
OF THE EXERCISE OF REMEDIES. ANY RESERVE OR OTHER CASH COLLATERAL OR LETTERS OF
CREDIT SECURING THE CROSSED MORTGAGE LOANS SHALL BE ALLOCATED BETWEEN SUCH
MORTGAGE LOANS IN ACCORDANCE WITH THE MORTGAGE LOAN DOCUMENTS, OR OTHERWISE ON A
PRO RATA BASIS BASED UPON THEIR OUTSTANDING PRINCIPAL BALANCES. ALL OTHER TERMS
OF THE MORTGAGE LOANS SHALL REMAIN IN FULL FORCE AND EFFECT, WITHOUT ANY
MODIFICATION THEREOF. THE MORTGAGORS SET FORTH ON SCHEDULE B HERETO ARE INTENDED
THIRD-PARTY BENEFICIARIES OF THE PROVISIONS SET FORTH IN THIS PARAGRAPH AND THE
PRECEDING PARAGRAPH. THE PROVISIONS OF THIS PARAGRAPH AND THE PRECEDING
PARAGRAPH MAY NOT BE MODIFIED WITH RESPECT TO ANY MORTGAGE LOAN WITHOUT THE
RELATED MORTGAGOR'S CONSENT.
21
F. ANY OF THE FOLLOWING DOCUMENT DEFECTS SHALL BE CONCLUSIVELY PRESUMED
MATERIALLY AND ADVERSELY TO AFFECT THE INTERESTS OF CERTIFICATEHOLDERS IN A
MORTGAGE LOAN AND BE A MATERIAL DOCUMENT DEFECT: (A) THE ABSENCE FROM THE
MORTGAGE FILE OF THE ORIGINAL SIGNED MORTGAGE NOTE, UNLESS THE MORTGAGE FILE
CONTAINS A SIGNED LOST NOTE AFFIDAVIT AND INDEMNITY THAT APPEARS TO BE REGULAR
ON ITS FACE; (B) THE ABSENCE FROM THE MORTGAGE FILE OF THE ORIGINAL SIGNED
MORTGAGE THAT APPEARS TO BE REGULAR ON ITS FACE, UNLESS THERE IS INCLUDED IN THE
MORTGAGE FILE A CERTIFIED COPY OF THE MORTGAGE BY THE LOCAL AUTHORITY WITH WHICH
THE MORTGAGE WAS RECORDED; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM
SPECIFIED IN PARAGRAPH 2.2.8. IF ANY OF THE FOREGOING MATERIAL DOCUMENT DEFECTS
IS DISCOVERED BY THE CUSTODIAN (OR THE TRUSTEE IF THERE IS NO CUSTODIAN), THE
TRUSTEE (OR AS SET FORTH IN SECTION 2.3(A) OF THE POOLING AND SERVICING
AGREEMENT, THE MASTER SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS
SECTION, INCLUDING THE GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES
HERETO AND MAKING DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT
DEFECT OR REPURCHASE OR REPLACEMENT OF THE RELATED MORTGAGE LOAN.
G. IF SELLER DISPUTES THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS
WITH RESPECT TO A MORTGAGE LOAN OR OTHERWISE REFUSES (I) TO EFFECT A CORRECTION
OR CURE OF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, (II) TO REPURCHASE
THE AFFECTED MORTGAGE LOAN FROM PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (I) THE PERIOD OF TIME
PROVIDED FOR SELLER TO CORRECT, REPURCHASE OR CURE HAS EXPIRED AND (II) THE
MORTGAGE LOAN IS THEN IN DEFAULT AND IS THEN A SPECIALLY SERVICED MORTGAGE LOAN,
THE SPECIAL SERVICER MAY, SUBJECT TO THE SERVICING STANDARD, MODIFY, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND THE PURCHASE
PRICE SHALL INCLUDE ANY WORK-OUT FEE PAID TO THE SPECIAL SERVICER UP TO THE DATE
OF REPURCHASE PLUS THE PRESENT VALUE (CALCULATED AT A DISCOUNT RATE EQUAL TO THE
APPLICABLE MORTGAGE RATE) OF THE WORK-OUT FEE THAT WOULD HAVE BEEN PAYABLE TO
THE SPECIAL SERVICER IN RESPECT OF SUCH MORTGAGE LOAN IF THE MORTGAGE LOAN
PERFORMED IN ACCORDANCE WITH ITS TERMS TO ITS MATURITY DATE, PROVIDED THAT NO
AMOUNT SHALL BE
22
PAID BY SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION FEE ALREADY
COMPRISES A PORTION OF THE PURCHASE PRICE.
H. SELLER SHALL BE NOTIFIED PROMPTLY AND IN WRITING BY (I) THE TRUSTEE OF ANY
NOTICE THAT IT RECEIVES THAT AN OPTION HOLDER INTENDS TO EXERCISE ITS OPTION TO
PURCHASE THE MORTGAGE LOAN IN ACCORDANCE WITH AND AS DESCRIBED IN SECTION 9.36
OF THE POOLING AND SERVICING AGREEMENT AND (II) THE SPECIAL SERVICER OF ANY
OFFER THAT IT RECEIVES TO PURCHASE THE APPLICABLE REO PROPERTY, EACH IN
CONNECTION WITH SUCH LIQUIDATION. UPON THE RECEIPT OF SUCH NOTICE BY SELLER,
SELLER SHALL THEN HAVE THE RIGHT TO PURCHASE THE RELATED MORTGAGE LOAN OR REO
PROPERTY, AS APPLICABLE, FROM THE TRUST AT A PURCHASE PRICE EQUAL TO, IN THE
CASE OF CLAUSE (I) OF THE IMMEDIATELY PRECEDING SENTENCE, THE OPTION PURCHASE
PRICE OR, IN THE CASE OF CLAUSE (II) OF THE IMMEDIATELY PRECEDING SENTENCE, THE
AMOUNT OF SUCH OFFER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT OR IN THE POOLING AND SERVICING AGREEMENT, THE RIGHT OF ANY OPTION
HOLDER TO PURCHASE SUCH MORTGAGE LOAN SHALL BE SUBJECT AND SUBORDINATE TO
SELLER'S RIGHT TO PURCHASE SUCH MORTGAGE LOAN AS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE. SELLER SHALL HAVE FIVE BUSINESS DAYS TO NOTIFY THE TRUSTEE
OR SPECIAL SERVICER, AS APPLICABLE, OF ITS INTENT TO SO PURCHASE THE MORTGAGE
LOAN OR RELATED REO PROPERTY FROM THE DATE THAT IT WAS NOTIFIED OF SUCH
INTENTION TO EXERCISE SUCH OPTION OR OF SUCH OFFER. THE SPECIAL SERVICER SHALL
BE OBLIGATED TO PROVIDE SELLER WITH ANY APPRAISAL OR OTHER THIRD PARTY REPORTS
RELATING TO THE MORTGAGED PROPERTY WITHIN ITS POSSESSION TO ENABLE SELLER TO
EVALUATE THE MORTGAGE LOAN OR REO PROPERTY. ANY SALE OF THE MORTGAGE LOAN, OR
FORECLOSURE UPON SUCH MORTGAGE LOAN AND SALE OF THE REO PROPERTY, TO A PERSON
OTHER THAN SELLER SHALL BE WITHOUT (I) RECOURSE OF ANY KIND (EITHER EXPRESS OR
IMPLIED) BY SUCH PERSON AGAINST SELLER AND (II) REPRESENTATION OR WARRANTY OF
ANY KIND (EITHER EXPRESS OR IMPLIED) BY SELLER TO OR FOR THE BENEFIT OF SUCH
PERSON.
I. THE FACT THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IS NOT DISCOVERED
UNTIL AFTER FORECLOSURE (BUT IN ALL INSTANCES PRIOR TO THE SALE OF THE RELATED
REO PROPERTY OR MORTGAGE LOAN) SHALL NOT PREJUDICE ANY CLAIM AGAINST SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY AT THE
PURCHASE PRICE. IF SELLER FAILS TO CORRECT OR CURE THE MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY, THEN THE PROVISIONS ABOVE
REGARDING NOTICE OF OFFERS RELATED TO SUCH REO PROPERTY AND SELLER'S RIGHT TO
PURCHASE SUCH REO PROPERTY SHALL APPLY. AFTER A
23
FINAL LIQUIDATION OF THE MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF
COMPETENT JURISDICTION ISSUES A FINAL ORDER AFTER THE EXPIRATION OF ANY
APPLICABLE APPEAL PERIOD THAT SELLER IS OR WAS OBLIGATED TO REPURCHASE THE
RELATED MORTGAGE LOAN OR REO MORTGAGE LOAN (A "FINAL JUDICIAL DETERMINATION") OR
SELLER OTHERWISE ACCEPTS LIABILITY, THEN, BUT IN NO EVENT LATER THAN THE
TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30 OF THE POOLING AND SERVICING
AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE TRUST THE DIFFERENCE BETWEEN
ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH LIQUIDATION IN ACCORDANCE WITH THE
POOLING AND SERVICING AGREEMENT (INCLUDING THOSE ARISING FROM ANY SALE TO
SELLER) AND THE PURCHASE PRICE.
J. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO PROPERTY PURSUANT TO THE
IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY LIQUIDATION FEE
(CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE SPECIAL
SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN RESPECT OF
SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET FORTH
ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE OF A
MORTGAGE LOAN BY SELLER.
K. THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
L. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE
24
TRUST WITHIN 90 DAYS OF THE RECEIPT OF NOTICE OF SUCH BREACH IN AN AMOUNT
SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST EXPENSE. THE PARTIES HERETO
ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE SELLER'S SOLE OBLIGATION WITH
RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS SENTENCE.
M. THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DISCOVERY OF ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH AND PROMPT WRITTEN
NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
N. IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER
OR ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE
THEREFOR, PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE
LOAN DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT
CONSTITUTES A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE
TRUSTEE SHALL BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT
SELLER SHALL BE VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN
EACH CASE WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH
MORTGAGE LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
VI. CLOSING.
A. THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX LLP, 000 XXXXX XXXXXX, XXX XXXX, XX 00000 AT 9:00 A.M., NEW
YORK TIME, ON THE CLOSING DATE. THE CLOSING SHALL BE SUBJECT TO EACH OF THE
FOLLOWING CONDITIONS:
1. ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE EXTENT OF THE STANDARD, IF ANY, SET FORTH
IN EACH REPRESENTATION AND WARRANTY).
2. ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED
25
BY ALL SIGNATORIES AS REQUIRED PURSUANT TO THE RESPECTIVE TERMS THEREOF.
3. SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
4. THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
5. ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
6. SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
7. THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
8. NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
9. SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
B. EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE
OBLIGATIONS HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE
MORTGAGE LOANS ON THE CLOSING DATE.
VII. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
A. THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
26
B. A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS
COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED ON OR PRIOR TO THE CLOSING DATE.
C. TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
D. A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF NEW YORK
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
E. A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
F. AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
1. SELLER IS VALIDLY EXISTING UNDER NEW YORK LAW AND HAS FULL CORPORATE
POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE
27
TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS HAVE BEEN OBTAINED.
4. NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF
SELLER, (B) TO THE KNOWLEDGE OF SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY
TERM OR PROVISION OF ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE,
TO WHICH SELLER IS A PARTY OR BY WHICH IT OR ANY OF ITS ASSETS IS BOUND OR
RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON
ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH INDENTURE, MORTGAGE,
CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS AGREEMENT, OR (C)
CONFLICTS WITH OR RESULTS IN A BREACH OR VIOLATION OF ANY LAW, RULE, REGULATION,
ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF
THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR
DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE
CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF
SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY
ON ITS BUSINESS SUBSTANTIALLY AS NOW CONDUCTED.
5. TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
6. THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO
28
PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
G. SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
H. A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
I. SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
J. AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
K. SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
L. AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
VIII. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding dated July 29, 2005.
IX. NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered
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or certified mail, postage prepaid and received by the addressee, (c) sent by
express courier delivery service and received by the addressee, or (d)
transmitted by telex or facsimile transmission (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to Purchaser, addressed to
Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department (or such other
address as may hereafter be furnished in writing by Purchaser), or if (ii) to
Seller, addressed to Seller at Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx (or to such other
address as Seller may designate in writing) with a copy to the attention of
Xxxxxxxx Xxxxx, Esq.
X. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
XI. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
XII. SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
XIII. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
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XIV. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
XV. MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
XVI. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
32
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such Title Insurance Policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c) or
(d), individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent
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mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance
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obtained in connection with the origination of the Mortgage Loans), as of the
date of the origination of each Mortgage Loan, (x) all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of such property, except for
encroachments that are insured against by the Title Policy referred to herein or
that do not materially and adversely affect the value or marketability of such
Mortgaged Property, (y) no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the Title Policy referred to herein,
and (z) the Mortgaged Property securing each Mortgage Loan is located on or
adjacent to a public road, or has access to an easement permitting ingress and
egress.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the
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related Mortgagor or in connection with any full or partial release of the
related Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental site assessment within 18 months
prior to the Cut-Off Date, an environmental site assessment
prepared to ASTM standards, or an update of a previous
assessment, was performed with respect to each Mortgaged Property
in connection with the origination or the sale of the related
Mortgage Loan, a report of the most recent assessment with
respect to each Mortgaged Property (an "Environmental Report")
has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not
disclosed in such Environmental Report. Each Mortgage requires
the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such
Environmental Report disclosed the existence of a material and
adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition
is remediated or (iii) the related Mortgagor was required either
to provide additional security that was deemed to be sufficient
by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. Each Mortgage Loan
set forth on Schedule C to this Exhibit 2 (each, a "Schedule C
Loan") is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule C (the "Policy
Issuer") and effective as of the date thereof (the "Environmental
Insurance Policy"). Except as set forth on Schedule A to this
Exhibit 2, with respect to each Schedule C Loan, (i) to the
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) a property condition or engineering
report was prepared with respect to lead based paint ("LBP"),
asbestos containing materials ("ACM") and radon gas ("RG") at
each related Mortgaged Property and (b) if such report disclosed
the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security, or establish with the lender
a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller for the remediation of the problem
and/or (B) agreed in the Mortgage Loan documents to establish an
operations and maintenance plan after the closing of the Mortgage
Loan, (iii) on the effective date of the Environmental Insurance
Policy, Seller as originator had no knowledge of
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any material and adverse environmental condition or circumstance
affecting the Mortgaged Property (other than the existence of
LBP, ACM or RG) that was not disclosed to the Policy Issuer in
one or more of the following: (a) the application for insurance,
(b) a borrower questionnaire that was provided to the Policy
Issuer or (c) an engineering or other report provided to the
Policy Issuer and (iv) the premium of any Environmental Insurance
Policy has been paid through the maturity of the policy's term
and the term of such policy extends at least five years beyond
the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
(i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or
local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws does
not have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
Sections 6901 et seq.), the Federal Water Pollution Control Act
as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
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13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor or any guarantor of any non-recourse exceptions
and environmental liability is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the Mortgaged Property, and not less
than the amount necessary to avoid the operation of any co-insurance provisions
with respect to the Mortgaged Property, and the policy contains no provisions
for a deduction for depreciation; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to twelve months of operations of
the Mortgaged Property estimated as of the date of origination by the originator
of such Mortgage Loan consistent with its capital markets conduit lending
practices; (c) a flood insurance policy (if any portion of buildings or other
structures on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy not less than $1
million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority
2-6
equal to or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered delinquent or unpaid until the date on which interest or penalties
would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease" which term shall include any related
estoppel letter or lender protection agreement between Seller and related
lessor), by the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease does not prohibit the current
use of the Mortgaged Property and does not prohibit the interest
of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser upon notice to, but without the consent of, the
lessor thereunder (or, if such consent is required for assignment
to Purchaser, it has been obtained prior to the Closing Date) and
is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the
consent of, such lessor or if such lessor's consent is required
it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease (A) requires the lessor under such Ground Lease
to give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given
under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice
2-7
has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms
that do not materially vary from the economic terms of the Ground
Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair
2-8
market value (i) at the date the Mortgage Loan was originated, at least equal to
80 percent of the original principal balance of the Mortgage Loan or (ii) at the
Closing Date, at least equal to 80 percent of the principal balance of the
Mortgage Loan on such date; provided that for purposes hereof, the fair market
value of the real property interest must first be reduced by (x) the amount of
any lien on the real property interest that is senior to the Mortgage Loan and
(y) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in clauses
(a)(i) and (a)(ii) of this paragraph 19 shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties securing such
cross-collateralized Mortgage Loans); or (b) substantially all the proceeds of
such Mortgage Loan were used to acquire, improve or protect the real property
that served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws and any other applicable material laws in effect at its
date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements
2-9
and/or (b) the payment of a predetermined or objectively determinable release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Borrower to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. Section 1.1001-3 and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
or provides for negative amortization (except that the ARD Loan may provide for
the accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property. Neither the Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. There exists no material default, breach,
violation or event of acceleration (and no event which, with the passage of time
or the giving of notice, or both, would constitute any of the foregoing) under
the documents evidencing or securing the Mortgage Loan, in any such case to the
extent the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this representation
and warranty does not address or otherwise cover any default, breach, violation
or event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller.
28. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
2-10
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged Property
and (b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents,
2-11
substantially to the effect that it does not have any assets other than those
related to its interest in and operation of such Mortgaged Property or
Properties, or any indebtedness other than as permitted by the related
Mortgage(s) or the other related Mortgage Loan documents, that it has its own
books and records and accounts separate and apart from any other person (other
than a Mortgagor for a Mortgage Loan that is cross-collateralized and
cross-defaulted with the related Mortgage Loan), and that it holds itself out as
a legal entity, separate and apart from any other person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or provides
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States.
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2).
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Seller's knowledge, do not, as of the date hereof, specifically
exclude Acts of Terrorism from coverage, or if such coverage is excluded, it is
covered by a separate terrorism insurance policy. With respect to each of the
Mortgage Loans, the related Mortgage Loan documents do not waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that
2-12
any right to require such coverage may be limited by commercially reasonable
availability, or as otherwise indicated on Schedule A.
43. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulation
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulation
Sections 1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as
a qualified mortgage, or any substantially similar provision).
44. No Fraud in Origination. A court of competent jurisdiction will
not find, in a final non-appealable judgment, that an employee of Seller
actively participated with the Borrower in any intentional fraud in connection
with the origination of the Mortgage Loan. To the Seller's knowledge, no
Borrower is guilty of defrauding or making an intentional material
misrepresentation to Seller in connection with the origination of the Mortgage
Loan.
45. Foreclosure Property. The Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to the
Purchaser, and the Seller does not know or, to the Seller's knowledge, have
reason to know that any Mortgage Loan will default. The representations in this
paragraph 45 are being made solely for the purpose of determining whether the
Mortgaged Property, if acquired by the Trust, would qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, and may not be
relied upon or used for any other purpose. Such representations shall not be
construed as a guarantee to any degree that defaults or losses will not occur.
46. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
2-13
SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
SCHEDULE C
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 29, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this __ day of August, 2005.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT (PMCF)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 29, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................2
2. CONVEYANCE OF MORTGAGE LOANS.............................................2
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..................14
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER..................................................................18
6. CLOSING.................................................................25
7. CLOSING DOCUMENTS.......................................................26
8. COSTS...................................................................29
9. NOTICES.................................................................29
10. SEVERABILITY OF PROVISIONS..............................................30
11. FURTHER ASSURANCES......................................................30
12. SURVIVAL................................................................30
13. GOVERNING LAW...........................................................30
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................31
15. MISCELLANEOUS...........................................................31
16. ENTIRE AGREEMENT........................................................31
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................16
Agreement......................................................................1
Certificate Purchase Agreement.................................................1
Certificates...................................................................1
Closing Date...................................................................2
Collateral Information........................................................10
Crossed Mortgage Loans........................................................16
Defective Mortgage Loan.......................................................16
Final Judicial Determination..................................................18
Indemnification Agreement.....................................................12
Initial Purchaser..............................................................1
Material Breach...............................................................15
Material Document Defect......................................................15
Memorandum.....................................................................1
Mortgage File..................................................................3
Mortgage Loan Schedule.........................................................2
Mortgage Loans.................................................................1
Officer's Certificate..........................................................6
Pooling and Servicing Agreement................................................1
Private Certificates...........................................................1
Prospectus Supplement..........................................................1
Public Certificates............................................................1
Purchaser......................................................................1
Repurchased Loan..............................................................16
Seller.........................................................................1
Special Servicer...............................................................1
Trust..........................................................................1
Trustee........................................................................1
Underwriters...................................................................1
Underwriting Agreement.........................................................1
i
MORTGAGE LOAN PURCHASE AGREEMENT
(PRUDENTIAL LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 29,
2005, between Prudential Mortgage Capital Funding, LLC (the "Seller"), and
Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August 1, 2005, between Purchaser, as
depositor, Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo
Bank, National Association, as a master servicer, CWCapital Asset Management
LLC, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent,
and Xxxxx Fargo Bank, National Association, as paying agent and certificate
registrar. In exchange for the Mortgage Loans, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement. The term
"Master Servicer" as used herein shall mean Prudential Asset Resources, Inc., in
its capacity as a master servicer under the Pooling and Servicing Agreement
unless otherwise specified.
The Class A-1, Class A-1A, Class A-2A, Class A-2B, Class A-AB, Class
A-3, Class A-4A, Class A-4B, Class X-2, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, Banc of America Securities LLC,
Greenwich Capital Markets, Inc. and SunTrust Capital Markets, Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated July 29, 2005 (the "Underwriting Agreement"), and the
Class X-1, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class R-III
Certificates (the "Private Certificates") will be sold by Purchaser to Xxxxxx
Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to a Certificate
Purchase Agreement, between Purchaser and the Initial Purchaser, dated July 29,
2005 (the "Certificate Purchase Agreement"). The Underwriters will offer the
Public Certificates for sale publicly pursuant to a Prospectus dated June 7,
2005, as supplemented by a Prospectus Supplement dated July 29, 2005 (together
with the Prospectus, the "Prospectus Supplement"), and the Initial Purchaser
will offer the Private Certificates for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum dated July 29, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
2
XVII. AGREEMENT TO PURCHASE.
A. SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING
RELEASED BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE
LOAN SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS AUGUST 1, 2005.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $187,932,289. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON AUGUST 11, 2005 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
B. ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND INTEREST
IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS AGREEMENT (TO THE
EXTENT SET FORTH IN SECTION 14).
XVIII. CONVEYANCE OF MORTGAGE LOANS.
A. EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE
CONSIDERATION REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE
CONDITIONS SPECIFIED IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER,
ASSIGN, SET OVER AND OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS
SPECIFICALLY PROVIDED HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH
THE UNDERSTANDING THAT THE SERVICING RIGHTS HAVE BEEN SOLD TO THE MASTER
SERVICER, IN AND TO THE MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE
AS OF THE CLOSING DATE. THE MORTGAGE LOAN SCHEDULE, AS IT MAY BE AMENDED FROM
TIME TO TIME ON OR PRIOR TO THE CLOSING DATE, SHALL CONFORM TO THE REQUIREMENTS
OF THIS AGREEMENT AND THE POOLING AND SERVICING AGREEMENT. IN CONNECTION WITH
SUCH TRANSFER AND ASSIGNMENT, SELLER SHALL DELIVER TO OR ON BEHALF OF THE
TRUSTEE, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE CLOSING DATE, THE MORTGAGE
NOTE (AS DESCRIBED IN CLAUSE 2.2.1 HEREOF) FOR EACH MORTGAGE LOAN AND ON OR
PRIOR TO THE FIFTH BUSINESS DAY AFTER THE CLOSING DATE, FIVE LIMITED POWERS OF
ATTORNEY SUBSTANTIALLY IN THE
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FORM ATTACHED HERETO AS EXHIBIT 5 IN FAVOR OF THE TRUSTEE AND THE SPECIAL
SERVICER TO EMPOWER THE TRUSTEE AND, IN THE EVENT OF THE FAILURE OR INCAPACITY
OF THE TRUSTEE, THE SPECIAL SERVICER, TO SUBMIT FOR RECORDING, AT THE EXPENSE OF
SELLER, ANY MORTGAGE LOAN DOCUMENTS REQUIRED TO BE RECORDED AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT AND ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF
RECORDING THEREON THAT ARE REQUIRED TO BE INCLUDED IN THE MORTGAGE FILES (SO
LONG AS ORIGINAL COUNTERPARTS HAVE PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE).
SELLER AGREES TO REASONABLY COOPERATE WITH THE TRUSTEE AND THE SPECIAL SERVICER
IN CONNECTION WITH ANY ADDITIONAL POWERS OF ATTORNEY OR REVISIONS THERETO THAT
ARE REQUESTED BY SUCH PARTIES FOR PURPOSES OF SUCH RECORDATION. THE PARTIES
HERETO AGREE THAT NO SUCH POWER OF ATTORNEY SHALL BE USED WITH RESPECT TO ANY
MORTGAGE LOAN BY OR UNDER AUTHORIZATION BY ANY PARTY HERETO EXCEPT TO THE EXTENT
THAT THE ABSENCE OF A DOCUMENT DESCRIBED IN THE SECOND PRECEDING SENTENCE WITH
RESPECT TO SUCH MORTGAGE LOAN REMAINS UNREMEDIED AS OF THE EARLIER OF (I) THE
DATE THAT IS 180 DAYS FOLLOWING THE DELIVERY OF NOTICE OF SUCH ABSENCE TO
SELLER, BUT IN NO EVENT EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II)
THE DATE (IF ANY) ON WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED
MORTGAGE LOAN. THE TRUSTEE SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE,
AFTER THE PERIODS SET FORTH ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT
SUBMIT SUCH ASSIGNMENTS FOR RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS
SENT ANY SUCH ASSIGNMENT FOR RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS
RETURN FROM THE APPLICABLE RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE
30TH DAY FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE
TRUSTEE EACH OF THE REMAINING DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2
HEREOF (WITH SUCH EXCEPTIONS AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO
EACH MORTGAGE LOAN (EACH, A "MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM
"WITHOUT RECOURSE" DOES NOT MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
B. ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE
ARE TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT
ALL TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE
ORIGINAL
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MORTGAGE NOTE IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH A COPY
OF THE MORTGAGE NOTE ATTACHED THERETO;
2. THE ORIGINAL MORTGAGE, WITH EVIDENCE OF RECORDING THEREON, AND, IF THE
MORTGAGE WAS EXECUTED PURSUANT TO A POWER OF ATTORNEY, A CERTIFIED TRUE COPY OF
THE POWER OF ATTORNEY CERTIFIED BY THE PUBLIC RECORDER'S OFFICE, WITH EVIDENCE
OF RECORDING THEREON (IF RECORDING IS CUSTOMARY IN THE JURISDICTION IN WHICH
SUCH POWER OF ATTORNEY WAS EXECUTED), OR CERTIFIED BY A TITLE INSURANCE COMPANY
OR ESCROW COMPANY TO BE A TRUE COPY THEREOF; PROVIDED THAT IF SUCH ORIGINAL
MORTGAGE CANNOT BE DELIVERED WITH EVIDENCE OF RECORDING THEREON ON OR PRIOR TO
THE 45TH DAY FOLLOWING THE CLOSING DATE BECAUSE OF A DELAY CAUSED BY THE PUBLIC
RECORDING OFFICE WHERE SUCH ORIGINAL MORTGAGE HAS BEEN DELIVERED FOR RECORDATION
OR BECAUSE SUCH ORIGINAL MORTGAGE HAS BEEN LOST, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL MORTGAGE THAT HAS BEEN LOST AFTER
RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY RECORDING OFFICE WHERE
SUCH MORTGAGE IS RECORDED THAT SUCH COPY IS A TRUE AND COMPLETE COPY OF THE
ORIGINAL RECORDED MORTGAGE;
3. THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) IN
THE CASE OF AN ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT THAT
HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY
RECORDING OFFICE WHERE SUCH DOCUMENT IS RECORDED THAT SUCH COPY IS A TRUE AND
COMPLETE COPY OF THE ORIGINAL RECORDED MODIFICATION, CONSOLIDATION OR EXTENSION
AGREEMENT, AND THE ORIGINALS OF ALL ASSUMPTION AGREEMENTS, IF ANY;
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4. AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I
INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6," PROVIDED,
IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH ASSIGNMENTS WILL BE
REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND INSTEAD, SELLER SHALL TAKE
ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF
THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF
RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND
SHALL DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS
SHOWN AS THE OWNER ON THE RECORD OF MERS;
5. ORIGINALS OF ALL INTERVENING ASSIGNMENTS OF MORTGAGE (EXCEPT WITH
RESPECT TO ANY MORTGAGE THAT HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEES), IF ANY, WITH EVIDENCE OF RECORDING THEREON OR, IF SUCH ORIGINAL
ASSIGNMENTS OF MORTGAGE HAVE BEEN DELIVERED TO THE APPROPRIATE RECORDER'S OFFICE
FOR RECORDATION, CERTIFIED TRUE COPIES OF SUCH ASSIGNMENTS OF MORTGAGE CERTIFIED
BY SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY SELLER OR, IF ANY
ORIGINAL INTERVENING ASSIGNMENT OF MORTGAGE HAS NOT YET BEEN RETURNED ON OR
PRIOR TO THE 45TH DAY FOLLOWING THE CLOSING DATE FROM THE APPLICABLE RECORDING
OFFICE OR HAS BEEN LOST, A TRUE AND CORRECT COPY THEREOF, TOGETHER WITH (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE THAT HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE
APPROPRIATE COUNTY RECORDING OFFICE WHERE SUCH ASSIGNMENT IS RECORDED THAT SUCH
COPY IS A TRUE AND COMPLETE COPY OF THE ORIGINAL RECORDED INTERVENING ASSIGNMENT
OF MORTGAGE;
6. IF THE RELATED ASSIGNMENT OF LEASES IS SEPARATE FROM THE MORTGAGE, THE
ORIGINAL OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF RECORDING THEREON OR, IF
SUCH ASSIGNMENT OF LEASES HAS NOT BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY
OF SUCH ASSIGNMENT OF LEASES CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
AN ORIGINAL OF EACH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF
RECORDING THEREON AND SHOWING A COMPLETE RECORDED CHAIN OF ASSIGNMENT FROM THE
NAMED ASSIGNEE TO
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THE HOLDER OF RECORD, AND IF ANY SUCH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES
HAS NOT BEEN RETURNED FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY OF
SUCH ASSIGNMENT CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX
CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6,"
WHICH ASSIGNMENT MAY BE EFFECTED IN THE RELATED ASSIGNMENT OF MORTGAGE,
PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEE, NO ASSIGNMENT OF ASSIGNMENT OF LEASES IN FAVOR OF THE TRUSTEE WILL BE
REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL ACTIONS
AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE RELATED
MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING TRANSFERS
OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL DELIVER TO THE
SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON
THE RECORD OF MERS;
7. THE ORIGINAL OR A COPY OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL
SECURITY FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
8. THE ORIGINAL TITLE INSURANCE POLICY, OR IN THE EVENT SUCH ORIGINAL TITLE
INSURANCE POLICY HAS NOT BEEN ISSUED, AN ORIGINAL BINDER OR ACTUAL TITLE
COMMITMENT OR A COPY THEREOF CERTIFIED BY THE TITLE COMPANY WITH THE ORIGINAL
TITLE INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE OR A
PRELIMINARY TITLE REPORT WITH AN ORIGINAL TITLE INSURANCE POLICY TO FOLLOW
WITHIN 180 DAYS OF THE CLOSING DATE;
9. (A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS
THE OWNER ON THE RECORD OF MERS;
10. COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH
7
GROUND LEASE AND THERE IS A LIEN IN FAVOR OF THE MORTGAGEE IN SUCH LEASE;
11. COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
12. EITHER (A) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE ASSIGNED AND
DELIVERED TO THE TRUSTEE ON BEHALF OF THE TRUST WITH A COPY TO BE HELD BY THE
MASTER SERVICER, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY,
CONSTITUTING ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD
BY THE MASTER SERVICER ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE HELD BY THE
TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH DOCUMENTS
EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND SERVICING
AGREEMENT (IT BEING UNDERSTOOD THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF
SUCH LETTER OF CREDIT BELONG TO THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE
CLOSING DATE, THE BANK ISSUING THE LETTER OF CREDIT THAT THE LETTER OF CREDIT
AND THE PROCEEDS THEREOF BELONG TO THE TRUST, AND TO USE REASONABLE EFFORTS TO
OBTAIN WITHIN 30 DAYS (BUT IN ANY EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE
CLOSING DATE, AN ACKNOWLEDGEMENT THEREOF BY THE BANK (WITH A COPY OF SUCH
ACKNOWLEDGEMENT TO BE SENT TO THE TRUSTEE) AND (C) TO INDEMNIFY THE TRUST FOR
ANY LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE
FAILURE OF SELLER TO ASSIGN THE LETTER OF CREDIT HEREUNDER). IN THE CASE OF
CLAUSE (B) ABOVE, ANY LETTER OF CREDIT HELD BY THE MASTER SERVICER SHALL BE HELD
IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE MASTER SERVICER SELLS ITS
RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN, THE MASTER SERVICER HAS AGREED
TO ASSIGN THE APPLICABLE LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF
THE SPECIAL SERVICER TO SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH
CASE, AT THE EXPENSE OF THE MASTER SERVICER. THE MASTER SERVICER HAS AGREED TO
INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE INEFFECTIVENESS OF SUCH
ASSIGNMENT;
13. THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
14. COPIES OF THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH
OTHER MORTGAGED PROPERTIES SECURING MORTGAGE
8
LOANS WITH A CUT-OFF DATE PRINCIPAL BALANCE EQUAL TO OR GREATER THAN
$20,000,000;
15. ANY ENVIRONMENTAL INSURANCE POLICY; AND
16. ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Master Servicer or the Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to the Master Servicer within 30 days of the Closing Date.
Any failure to deliver any ground lease shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of
the Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
C. THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED
TO IN SECTIONS 2.2.4 AND 2.2.6 MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH THE THIRD SUCCEEDING PARAGRAPH, THE ASSIGNMENTS OF MORTGAGES,
THE ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
D. IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN,
ANY OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3,
2.2.5 OR 2.2.6, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN
DELIVERED FOR RECORDATION WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A
PHOTOCOPY THEREOF (CERTIFIED BY THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A
TRUE AND COMPLETE COPY OF THE ORIGINAL THEREOF
9
SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY PERIOD, SELLER SHALL
THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE RECORDED DOCUMENT (OR
WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE TRUSTEE MAY CONSENT TO,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG AS SELLER IS, AS
CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY, IN GOOD FAITH
ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE SUCH ORIGINAL
OR PHOTOCOPY).
E. THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE THEREON AFTER THE CUT-OFF DATE, ALL OTHER
PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER THAN SCHEDULED
PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL PAYMENTS OF
INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON THE CUT-OFF
DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR BEFORE THE
CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO SELLER.
F. WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR REAL PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4
AND 2.2.6(II) ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL
DELIVER AND PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE
TO BE SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED
TO IN CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED
UNRECORDED OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER
SHALL PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT
ITS OWN EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY
THE TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
G. DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS
SUBCONTRACTORS THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE
DELIVERED TO THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF
THE MASTER SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER
THE CLOSING DATE.
H. THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER SHALL INCLUDE,
TO THE EXTENT REQUIRED TO BE (AND ACTUALLY) DELIVERED TO SELLER PURSUANT TO THE
APPLICABLE MORTGAGE LOAN DOCUMENTS, COPIES OF THE FOLLOWING ITEMS: THE MORTGAGE
NOTE, ANY MORTGAGE, THE ASSIGNMENT OF LEASES AND THE ASSIGNMENT OF
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MORTGAGE, ANY GUARANTY/INDEMNITY AGREEMENT, ANY LOAN AGREEMENT, THE INSURANCE
POLICIES OR CERTIFICATES, AS APPLICABLE, THE PROPERTY INSPECTION REPORTS, ANY
FINANCIAL STATEMENTS ON THE PROPERTY, ANY ESCROW ANALYSIS, THE TAX BILLS, THE
APPRAISAL, THE ENVIRONMENTAL REPORT, THE ENGINEERING REPORT, THE ASSET SUMMARY,
FINANCIAL INFORMATION ON THE BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF
CREDIT, ANY INTERCREDITOR AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES.
I. UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS OF THE TYPE SET FORTH IN SECTION 2.8
ABOVE WITH RESPECT TO THE RELATED MORTGAGE LOAN PREPARED BY OR THAT COME INTO
THE POSSESSION OF SELLER SHALL IMMEDIATELY VEST IN PURCHASER AND ITS ASSIGNS,
AND SHALL BE DELIVERED PROMPTLY BY SELLER TO OR ON BEHALF OF EITHER THE TRUSTEE
OR THE MASTER SERVICER AS SET FORTH HEREIN. SELLER'S AND PURCHASER'S RECORDS
SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER TO PURCHASER AND
ITS ASSIGNS AS A SALE.
J. IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, OR IF FOR ANY OTHER
REASON THIS AGREEMENT IS HELD OR DEEMED TO CREATE A SECURITY INTEREST IN THE
MORTGAGE LOANS OR ANY RELATED PROPERTY, THEN:
1. THIS AGREEMENT SHALL BE DEEMED TO BE A SECURITY AGREEMENT; AND
2. THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
A. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT AND INVESTMENT PROPERTY CONSISTING OF, ARISING
FROM OR RELATING TO
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ANY OF THE FOLLOWING PROPERTY: THE MORTGAGE LOANS IDENTIFIED ON THE
MORTGAGE LOAN SCHEDULE, INCLUDING THE RELATED MORTGAGE NOTES, MORTGAGES,
SECURITY AGREEMENTS, AND TITLE, HAZARD AND OTHER INSURANCE POLICIES, ALL
DISTRIBUTIONS WITH RESPECT THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL
SUBSTITUTE OR REPLACEMENT MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT
THERETO, AND THE MORTGAGE FILES;
B. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT, INVESTMENT PROPERTY AND OTHER RIGHTS ARISING
FROM OR BY VIRTUE OF THE DISPOSITION OF, OR COLLECTIONS WITH RESPECT TO, OR
INSURANCE PROCEEDS PAYABLE WITH RESPECT TO, OR CLAIMS AGAINST OTHER PERSONS
WITH RESPECT TO, ALL OR ANY PART OF THE COLLATERAL DESCRIBED IN CLAUSE (A)
ABOVE (INCLUDING ANY ACCRUED DISCOUNT REALIZED ON LIQUIDATION OF ANY
INVESTMENT PURCHASED AT A DISCOUNT); AND
C. ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
K. THE POSSESSION BY PURCHASER OR ITS DESIGNEE OF THE MORTGAGE NOTES, THE
MORTGAGES, AND SUCH OTHER GOODS, LETTERS OF CREDIT, ADVICES OF CREDIT,
INSTRUMENTS, MONEY, DOCUMENTS, CHATTEL PAPER OR CERTIFICATED SECURITIES SHALL BE
DEEMED TO BE POSSESSION BY THE SECURED PARTY OR POSSESSION BY A PURCHASER FOR
PURPOSES OF PERFECTING THE SECURITY INTEREST PURSUANT TO THE UNIFORM COMMERCIAL
CODE (INCLUDING, WITHOUT LIMITATION, SECTIONS 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
L. NOTIFICATIONS TO PERSONS HOLDING SUCH PROPERTY, AND ACKNOWLEDGMENTS,
RECEIPTS, OR CONFIRMATIONS FROM PERSONS HOLDING SUCH PROPERTY, SHALL BE DEEMED
TO BE NOTIFICATIONS TO, OR ACKNOWLEDGMENTS, RECEIPTS OR CONFIRMATIONS FROM,
SECURITIES INTERMEDIARIES, BAILEES OR AGENTS OF, OR PERSONS HOLDING FOR,
PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
M. SELLER SHALL, TO THE EXTENT CONSISTENT WITH THIS AGREEMENT AND UPON REQUEST
BY OR ON BEHALF OF PURCHASER, TAKE SUCH REASONABLE ACTIONS AS MAY BE NECESSARY
TO ENSURE THAT, IF THIS AGREEMENT WERE DEEMED TO CREATE A SECURITY INTEREST IN
THE PROPERTY DESCRIBED ABOVE, SUCH SECURITY INTEREST WOULD BE DEEMED TO BE A
PERFECTED SECURITY INTEREST OF FIRST PRIORITY UNDER APPLICABLE LAW AND WILL BE
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MAINTAINED AS SUCH THROUGHOUT THE TERM OF THE AGREEMENT. IN SUCH CASE, SELLER
SHALL FILE ALL FILINGS NECESSARY TO MAINTAIN THE EFFECTIVENESS OF ANY ORIGINAL
FILINGS NECESSARY UNDER THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
JURISDICTION TO PERFECT SUCH SECURITY INTEREST IN SUCH PROPERTY. IN CONNECTION
HEREWITH, PURCHASER SHALL HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY
AND CREDITOR UNDER THE UNIFORM COMMERCIAL CODE AS IN FORCE IN THE RELEVANT
JURISDICTION.
N. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE LOAN AS TO
WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1) REQUIRED TO BE
DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER PURSUANT TO THIS
SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR IS NOT PROPERLY
EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE OF THE RELATED
MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A WAIVER OF SUCH
OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND ASSIGNS' RIGHTS IN
RESPECT THEREOF PURSUANT TO SECTION 5.
XIX. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW. A. SELLER SHALL (I)
DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE ACCEPTABLE TO
PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS AS MAY BE
REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR FILES
(COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS PROPOSED
TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE
LOANS PURSUANT TO SECTION 5 HEREOF.
B. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
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CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER WITH ANY ADDITIONAL INFORMATION IDENTIFIED BY THE
MASTER SERVICER AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT
THAT SUCH INFORMATION IS AVAILABLE.
C. PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE
DESIGNEES OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF
THE IDENTITY OF SUCH DESIGNEE OR AGENT.
D. PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE SUCH INFORMATION. IF
PURCHASER IS REQUIRED TO DISCLOSE IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE PRECEDING
SENTENCE, PURCHASER SHALL PROVIDE TO SELLER A COPY OF THE PROPOSED FORM OF SUCH
DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE AND SELLER SHALL PROMPTLY, AND IN ANY
EVENT WITHIN TWO BUSINESS DAYS, NOTIFY PURCHASER OF ANY INACCURACIES THEREIN, IN
WHICH CASE PURCHASER SHALL MODIFY SUCH FORM IN A MANNER THAT CORRECTS SUCH
INACCURACIES. IF PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE SECOND PRECEDING
SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
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COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
XX. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
A. TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN (SUBJECT
TO THE LAST PARAGRAPH OF THIS SECTION 4.1) AS OF THE DATE HEREOF (OR AS OF SUCH
OTHER DATE SPECIFICALLY SET FORTH IN THE PARTICULAR REPRESENTATION AND WARRANTY)
EACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT
AS OTHERWISE SET FORTH ON SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER
REPRESENTS AND WARRANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
1. SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A LIMITED LIABILITY
COMPANY IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE. SELLER HAS THE
REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO
TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER
AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS CONTEMPLATED
BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT
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SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF THE PROVISIONS OF
THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER
APPLICABLE SECURITIES LAWS.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
4. NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SUBSECTION 4.1.3, ANY LAW, RULE, REGULATION, ORDER, JUDGMENT,
WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES
CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR
CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER
OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
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5. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
6. ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
7. TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED JULY 29, 2005, BETWEEN SELLER, PURCHASER, THE
UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
RELATING TO THE MORTGAGE LOANS CONTAINED IN THE DOCUMENTS IN CLAUSE (A)(I) OR
(A)(II) OF SECTION 1(A) OF THE INDEMNIFICATION AGREEMENT UNDER THE HEADINGS OR
PROVISIONS SPECIFIED IN SUCH CLAUSE OR IN THE MATERIALS SPECIFIED IN CLAUSE (B)
OR (C) OF SECTION 1(A) OF THE INDEMNIFICATION AGREEMENT DOES NOT CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY
TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THEY WERE MADE, NOT MISLEADING. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THIS SUBPARAGRAPH 4.1.7 SHALL RUN EXCLUSIVELY TO THE BENEFIT OF
PURCHASER AND NO OTHER PARTY.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same force and effect as if made on the Closing
Date, provided that any representations and warranties made as of a specified
date shall be true and correct as of such specified date.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
B. TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS
AND WARRANTS TO SELLER AS OF THE DATE HEREOF:
1. PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF
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DELAWARE WITH FULL POWER AND AUTHORITY TO CARRY ON ITS BUSINESS AS PRESENTLY
CONDUCTED BY IT.
2. PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PURCHASER HAS DULY AND VALIDLY
AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND HAS
DULY AND VALIDLY EXECUTED AND DELIVERED THIS AGREEMENT. THIS AGREEMENT, ASSUMING
DUE AUTHORIZATION, EXECUTION AND DELIVERY BY SELLER, CONSTITUTES THE VALID AND
BINDING OBLIGATION OF PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
4. NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER,
OR RESULT IN A BREACH OF, ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR
INDENTURE TO WHICH PURCHASER IS A PARTY OR THAT MAY BE APPLICABLE TO PURCHASER
OR ITS ASSETS.
5. PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
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6. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL CONDITION OF
PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF PURCHASER TO
PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
7. PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
XXI. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
A. IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE
TRUSTEE ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY
OF PURCHASER'S ASSIGNMENT OF ITS RIGHTS HEREUNDER TO THE TRUSTEE, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO (EACH AS OF THE
DATE HEREOF UNLESS OTHERWISE SPECIFIED).
B. IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE
DELIVERED TO THE TRUSTEE PURSUANT TO SECTION 2 IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE SUCH
DEFECT OR BREACH, EITHER (I) MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF
THE HOLDERS OF THE CERTIFICATES IN THE RELATED MORTGAGE LOAN, OR (II) BOTH (A)
THE DOCUMENT DEFECT OR BREACH MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE
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MORTGAGE LOAN AND (B) THE MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR
REHABILITATED MORTGAGE LOAN (SUCH A DOCUMENT DEFECT DESCRIBED IN THE PRECEDING
CLAUSE (I) OR (II), A "MATERIAL DOCUMENT DEFECT" AND SUCH A BREACH DESCRIBED IN
THE PRECEDING CLAUSE (I) OR (II) A "MATERIAL BREACH"), THE PARTY DISCOVERING
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH SHALL PROMPTLY NOTIFY, IN
WRITING, THE OTHER PARTIES; PROVIDED THAT ANY BREACH OF THE REPRESENTATION AND
WARRANTY CONTAINED IN PARAGRAPH (41) OF SUCH EXHIBIT 2 SHALL CONSTITUTE A
MATERIAL BREACH ONLY IF SUCH PREPAYMENT PREMIUM OR YIELD MAINTENANCE CHARGE IS
NOT DEEMED "CUSTOMARY" FOR COMMERCIAL MORTGAGE LOANS AS EVIDENCED BY (I) AN
OPINION OF TAX COUNSEL TO SUCH EFFECT OR (II) A DETERMINATION BY THE INTERNAL
REVENUE SERVICE THAT SUCH PROVISION IS NOT CUSTOMARY. PROMPTLY (BUT IN ANY EVENT
WITHIN THREE BUSINESS DAYS) UPON BECOMING AWARE OF ANY SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH, THE MASTER SERVICER SHALL, AND THE SPECIAL SERVICER
MAY, REQUEST THAT SELLER, NOT LATER THAN 90 DAYS FROM SELLER'S RECEIPT OF THE
NOTICE OF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, CURE SUCH MATERIAL
DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, IN ALL MATERIAL
RESPECTS; PROVIDED, HOWEVER, THAT IF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL
BREACH, AS THE CASE MAY BE, CANNOT BE CORRECTED OR CURED IN ALL MATERIAL
RESPECTS WITHIN SUCH 90 DAY PERIOD, AND SUCH MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH WOULD NOT CAUSE THE MORTGAGE LOAN TO BE OTHER THAN A "QUALIFIED
MORTGAGE"(AS DEFINED IN THE CODE) BUT SELLER IS DILIGENTLY ATTEMPTING TO EFFECT
SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER IN AN OFFICER'S CERTIFICATE
DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL BE EXTENDED FOR AN
ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL DOCUMENT DEFECT, (X)
THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE LOAN AND A SERVICING
TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY DEFAULT OR AS DESCRIBED IN
CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF "SERVICING TRANSFER EVENT" IN THE
POOLING AND SERVICING AGREEMENT AND (Y) THE MATERIAL DOCUMENT DEFECT WAS
IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER BY THE TRUSTEE PURSUANT TO
SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT NOT LESS THAN 90 DAYS PRIOR
TO THE DELIVERY OF THE NOTICE OF SUCH MATERIAL DOCUMENT DEFECT. THE PARTIES
ACKNOWLEDGE THAT NEITHER DELIVERY OF A CERTIFICATION OR SCHEDULE OF EXCEPTIONS
TO SELLER PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT OR
OTHERWISE NOR POSSESSION OF SUCH CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN
AND OF ITSELF, CONSTITUTE DELIVERY OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR
KNOWLEDGE OR AWARENESS BY SELLER OF ANY MATERIAL DOCUMENT DEFECT LISTED THEREIN.
C. SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH CANNOT BE CORRECTED OR CURED
20
WITHIN THE ABOVE CURE PERIODS, SELLER SHALL, ON OR BEFORE THE TERMINATION OF
SUCH CURE PERIODS, EITHER (I) REPURCHASE THE AFFECTED MORTGAGE LOAN OR REO
MORTGAGE LOAN FROM PURCHASER OR ITS ASSIGNEE AT THE PURCHASE PRICE AS DEFINED IN
THE POOLING AND SERVICING AGREEMENT, OR (II) IF WITHIN THE THREE-MONTH PERIOD
COMMENCING ON THE CLOSING DATE (OR WITHIN THE TWO-YEAR PERIOD COMMENCING ON THE
CLOSING DATE IF THE RELATED MORTGAGE LOAN IS A "DEFECTIVE OBLIGATION" WITHIN THE
MEANING OF SECTION 860G(A)(4)(B)(II) OF THE CODE AND TREASURY REGULATION SECTION
1.860G-2(F)), AT ITS OPTION REPLACE, WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO
MORTGAGE LOAN TO WHICH SUCH DEFECT RELATES WITH A QUALIFYING SUBSTITUTE MORTGAGE
LOAN. IF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH WOULD CAUSE THE
MORTGAGE LOAN TO BE OTHER THAN A "QUALIFIED MORTGAGE" (AS DEFINED IN THE CODE),
THEN NOTWITHSTANDING THE PREVIOUS SENTENCE OR THE PREVIOUS PARAGRAPH, REPURCHASE
MUST OCCUR WITHIN 85 DAYS FROM THE DATE SELLER WAS NOTIFIED OF THE DEFECT.
SELLER AGREES THAT ANY SUBSTITUTION SHALL BE COMPLETED IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF THE POOLING AND SERVICING AGREEMENT.
D. IF (X) A MORTGAGE LOAN IS TO BE REPURCHASED OR REPLACED AS CONTEMPLATED ABOVE
(A "DEFECTIVE MORTGAGE LOAN"), (Y) SUCH DEFECTIVE MORTGAGE LOAN IS
CROSS-COLLATERALIZED AND CROSS-DEFAULTED WITH ONE OR MORE OTHER MORTGAGE LOANS
("CROSSED MORTGAGE LOANS") AND (Z) THE APPLICABLE DOCUMENT DEFECT OR BREACH DOES
NOT CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY
BE, AS TO SUCH CROSSED MORTGAGE LOANS (WITHOUT REGARD TO THIS PARAGRAPH), THEN
THE APPLICABLE DOCUMENT DEFECT OR BREACH (AS THE CASE MAY BE) SHALL BE DEEMED TO
CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, AS
TO EACH SUCH CROSSED MORTGAGE LOAN FOR PURPOSES OF THE ABOVE PROVISIONS, AND
SELLER SHALL BE OBLIGATED TO REPURCHASE OR REPLACE EACH SUCH CROSSED MORTGAGE
LOAN IN ACCORDANCE WITH THE PROVISIONS ABOVE, UNLESS, IN THE CASE OF SUCH BREACH
OR DOCUMENT DEFECT, (A) SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE
TRUSTEE AT THE EXPENSE OF SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE
TRUSTEE, IT WOULD BE USUAL AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO
OBTAIN A NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS
WOULD BE SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE
LOANS AS TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED
WITHOUT REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (EXCLUDING THE AFFECTED
LOAN(S)) FOR THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR
REPLACEMENT IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (INCLUDING THE AFFECTED
LOANS(S))
21
SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT AND (B) THE DEBT
SERVICE COVERAGE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOAN(S)) FOR THE FOUR PRECEDING CALENDAR QUARTERS PRECEDING THE
REPURCHASE OR REPLACEMENT, AND (II) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED
MORTGAGE LOANS (EXCLUDING THE AFFECTED LOAN(S)) IS NOT GREATER THAN THE GREATER
OF (A) THE LOAN-TO-VALUE RATIO, EXPRESSED AS A WHOLE NUMBER (TAKEN TO ONE
DECIMAL PLACE), FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED
LOAN(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT PLUS 10% AND
(B) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOANS(S)), AT THE TIME OF REPURCHASE OR REPLACEMENT. THE DETERMINATION
OF THE MASTER SERVICER AS TO WHETHER THE CONDITIONS SET FORTH ABOVE HAVE BEEN
SATISFIED SHALL BE CONCLUSIVE AND BINDING IN THE ABSENCE OF MANIFEST ERROR. THE
MASTER SERVICER WILL BE ENTITLED TO CAUSE TO BE DELIVERED, OR DIRECT SELLER TO
(IN WHICH CASE SELLER SHALL) CAUSE TO BE DELIVERED TO THE MASTER SERVICER, AN
APPRAISAL OF ANY OR ALL OF THE RELATED MORTGAGED PROPERTIES FOR PURPOSES OF
DETERMINING WHETHER THE CONDITION SET FORTH IN CLAUSE (II) ABOVE HAS BEEN
SATISFIED, IN EACH CASE AT THE EXPENSE OF SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
E. WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER) CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND
PURCHASER HEREBY AGREE TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE
OTHER'S PRIMARY COLLATERAL BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY
COLLATERAL SECURING THEIR RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO
THE TRUSTEE, THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOANS STILL HELD BY
THE TRUSTEE, SO LONG AS SUCH EXERCISE DOES NOT IMPAIR THE ABILITY OF THE OTHER
PARTY TO EXERCISE ITS REMEDIES AGAINST ITS PRIMARY COLLATERAL. IF THE EXERCISE
OF REMEDIES BY ONE PARTY WOULD IMPAIR THE ABILITY OF THE OTHER PARTY TO EXERCISE
ITS REMEDIES WITH RESPECT TO THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOAN
OR MORTGAGE LOANS HELD BY SUCH PARTY, THEN BOTH PARTIES SHALL FORBEAR FROM
EXERCISING SUCH REMEDIES UNTIL THE LOAN DOCUMENTS EVIDENCING AND SECURING THE
RELEVANT MORTGAGE LOANS CAN BE MODIFIED IN A MANNER THAT COMPLIES WITH THE
POOLING AND SERVICING AGREEMENT TO REMOVE THE THREAT OF IMPAIRMENT AS A RESULT
OF THE EXERCISE OF REMEDIES. ANY RESERVE OR OTHER CASH COLLATERAL OR LETTERS OF
CREDIT SECURING THE CROSSED MORTGAGE LOANS SHALL BE ALLOCATED BETWEEN SUCH
MORTGAGE LOANS IN ACCORDANCE WITH THE MORTGAGE LOAN DOCUMENTS, OR OTHERWISE ON A
PRO RATA BASIS BASED UPON THEIR OUTSTANDING PRINCIPAL BALANCES.
22
ALL OTHER TERMS OF THE MORTGAGE LOANS SHALL REMAIN IN FULL FORCE AND EFFECT,
WITHOUT ANY MODIFICATION THEREOF. THE MORTGAGORS SET FORTH ON SCHEDULE B HERETO
ARE INTENDED THIRD-PARTY BENEFICIARIES OF THE PROVISIONS SET FORTH IN THIS
PARAGRAPH AND THE PRECEDING PARAGRAPH. THE PROVISIONS OF THIS PARAGRAPH AND THE
PRECEDING PARAGRAPH MAY NOT BE MODIFIED WITH RESPECT TO ANY MORTGAGE LOAN
WITHOUT THE RELATED MORTGAGOR'S CONSENT.
F. ANY OF THE FOLLOWING DOCUMENT DEFECTS SHALL BE CONCLUSIVELY PRESUMED
MATERIALLY AND ADVERSELY TO AFFECT THE INTERESTS OF CERTIFICATEHOLDERS IN A
MORTGAGE LOAN AND BE A MATERIAL DOCUMENT DEFECT: (A) THE ABSENCE FROM THE
MORTGAGE FILE OF THE ORIGINAL SIGNED MORTGAGE NOTE, UNLESS THE MORTGAGE FILE
CONTAINS A SIGNED LOST NOTE AFFIDAVIT AND INDEMNITY THAT APPEARS TO BE REGULAR
ON ITS FACE; (B) THE ABSENCE FROM THE MORTGAGE FILE OF THE ORIGINAL SIGNED
MORTGAGE THAT APPEARS TO BE REGULAR ON ITS FACE, UNLESS THERE IS INCLUDED IN THE
MORTGAGE FILE A CERTIFIED COPY OF THE MORTGAGE BY THE LOCAL AUTHORITY WITH WHICH
THE MORTGAGE WAS RECORDED; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM
SPECIFIED IN PARAGRAPH 2.2.8. IF ANY OF THE FOREGOING MATERIAL DOCUMENT DEFECTS
IS DISCOVERED BY THE CUSTODIAN (OR THE TRUSTEE IF THERE IS NO CUSTODIAN), THE
TRUSTEE (OR AS SET FORTH IN SECTION 2.3(A) OF THE POOLING AND SERVICING
AGREEMENT, THE MASTER SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS
SECTION, INCLUDING THE GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES
HERETO AND MAKING DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT
DEFECT OR REPURCHASE OR REPLACEMENT OF THE RELATED MORTGAGE LOAN.
G. IF SELLER DISPUTES THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS
WITH RESPECT TO A MORTGAGE LOAN OR OTHERWISE REFUSES (I) TO EFFECT A CORRECTION
OR CURE OF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, (II) TO REPURCHASE
THE AFFECTED MORTGAGE LOAN FROM PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (I) THE PERIOD OF TIME
PROVIDED FOR SELLER TO CORRECT, REPURCHASE OR CURE HAS EXPIRED AND (II) THE
MORTGAGE LOAN IS THEN IN DEFAULT AND IS THEN A SPECIALLY SERVICED MORTGAGE LOAN,
THE SPECIAL SERVICER MAY, SUBJECT TO THE SERVICING STANDARD, MODIFY, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH
23
MODIFICATION AND WORK-OUT, SELLER SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE
LOAN AS MODIFIED AND THE PURCHASE PRICE SHALL INCLUDE ANY WORK-OUT FEE PAID TO
THE SPECIAL SERVICER UP TO THE DATE OF REPURCHASE PLUS THE PRESENT VALUE
(CALCULATED AT A DISCOUNT RATE EQUAL TO THE APPLICABLE MORTGAGE RATE) OF THE
WORK-OUT FEE THAT WOULD HAVE BEEN PAYABLE TO THE SPECIAL SERVICER IN RESPECT OF
SUCH MORTGAGE LOAN IF THE MORTGAGE LOAN PERFORMED IN ACCORDANCE WITH ITS TERMS
TO ITS MATURITY DATE, PROVIDED THAT NO AMOUNT SHALL BE PAID BY SELLER IN RESPECT
OF ANY WORK-OUT FEE IF A LIQUIDATION FEE ALREADY COMPRISES A PORTION OF THE
PURCHASE PRICE.
H. SELLER SHALL BE NOTIFIED PROMPTLY AND IN WRITING BY (I) THE TRUSTEE OF ANY
NOTICE THAT IT RECEIVES THAT AN OPTION HOLDER INTENDS TO EXERCISE ITS OPTION TO
PURCHASE THE MORTGAGE LOAN IN ACCORDANCE WITH AND AS DESCRIBED IN SECTION 9.36
OF THE POOLING AND SERVICING AGREEMENT AND (II) THE SPECIAL SERVICER OF ANY
OFFER THAT IT RECEIVES TO PURCHASE THE APPLICABLE REO PROPERTY, EACH IN
CONNECTION WITH SUCH LIQUIDATION. UPON THE RECEIPT OF SUCH NOTICE BY SELLER,
SELLER SHALL THEN HAVE THE RIGHT TO PURCHASE THE RELATED MORTGAGE LOAN OR REO
PROPERTY, AS APPLICABLE, FROM THE TRUST AT A PURCHASE PRICE EQUAL TO, IN THE
CASE OF CLAUSE (I) OF THE IMMEDIATELY PRECEDING SENTENCE, THE OPTION PURCHASE
PRICE OR, IN THE CASE OF CLAUSE (II) OF THE IMMEDIATELY PRECEDING SENTENCE, THE
AMOUNT OF SUCH OFFER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT OR IN THE POOLING AND SERVICING AGREEMENT, THE RIGHT OF ANY OPTION
HOLDER TO PURCHASE SUCH MORTGAGE LOAN SHALL BE SUBJECT AND SUBORDINATE TO
SELLER'S RIGHT TO PURCHASE SUCH MORTGAGE LOAN AS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE. SELLER SHALL HAVE FIVE BUSINESS DAYS TO NOTIFY THE TRUSTEE
OR SPECIAL SERVICER, AS APPLICABLE, OF ITS INTENT TO SO PURCHASE THE MORTGAGE
LOAN OR RELATED REO PROPERTY FROM THE DATE THAT IT WAS NOTIFIED OF SUCH
INTENTION TO EXERCISE SUCH OPTION OR OF SUCH OFFER. THE SPECIAL SERVICER SHALL
BE OBLIGATED TO PROVIDE SELLER WITH ANY APPRAISAL OR OTHER THIRD PARTY REPORTS
RELATING TO THE MORTGAGED PROPERTY WITHIN ITS POSSESSION TO ENABLE SELLER TO
EVALUATE THE MORTGAGE LOAN OR REO PROPERTY. ANY SALE OF THE MORTGAGE LOAN, OR
FORECLOSURE UPON SUCH MORTGAGE LOAN AND SALE OF THE REO PROPERTY, TO A PERSON
OTHER THAN SELLER SHALL BE WITHOUT (I) RECOURSE OF ANY KIND (EITHER EXPRESS OR
IMPLIED) BY SUCH PERSON AGAINST SELLER AND (II) REPRESENTATION OR WARRANTY OF
ANY KIND (EITHER EXPRESS OR IMPLIED) BY SELLER TO OR FOR THE BENEFIT OF SUCH
PERSON.
I. THE FACT THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IS NOT DISCOVERED
UNTIL AFTER FORECLOSURE (BUT IN ALL INSTANCES PRIOR TO THE SALE OF THE RELATED
REO PROPERTY OR MORTGAGE LOAN) SHALL NOT PREJUDICE ANY CLAIM AGAINST SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER
24
SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH MATERIAL
DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY AT THE PURCHASE
PRICE. IF SELLER FAILS TO CORRECT OR CURE THE MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH OR PURCHASE THE REO PROPERTY, THEN THE PROVISIONS ABOVE
REGARDING NOTICE OF OFFERS RELATED TO SUCH REO PROPERTY AND SELLER'S RIGHT TO
PURCHASE SUCH REO PROPERTY SHALL APPLY. AFTER A FINAL LIQUIDATION OF THE
MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF COMPETENT JURISDICTION ISSUES
A FINAL ORDER AFTER THE EXPIRATION OF ANY APPLICABLE APPEAL PERIOD THAT SELLER
IS OR WAS OBLIGATED TO REPURCHASE THE RELATED MORTGAGE LOAN OR REO MORTGAGE LOAN
(A "FINAL JUDICIAL DETERMINATION") OR SELLER OTHERWISE ACCEPTS LIABILITY, THEN,
BUT IN NO EVENT LATER THAN THE TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30
OF THE POOLING AND SERVICING AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE
TRUST THE DIFFERENCE BETWEEN ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH
LIQUIDATION IN ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT (INCLUDING
THOSE ARISING FROM ANY SALE TO SELLER) AND THE PURCHASE PRICE.
J. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO PROPERTY PURSUANT TO THE
IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY LIQUIDATION FEE
(CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE SPECIAL
SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN RESPECT OF
SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET FORTH
ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE OF A
MORTGAGE LOAN BY SELLER.
K. THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
25
L. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE TRUST WITHIN 90 DAYS OF THE RECEIPT OF
NOTICE OF SUCH BREACH IN AN AMOUNT SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST
EXPENSE. THE PARTIES HERETO ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE
SELLER'S SOLE OBLIGATION WITH RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS
SENTENCE.
M. THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DISCOVERY OF ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH AND PROMPT WRITTEN
NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
N. IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER
OR ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE
THEREFOR, PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE
LOAN DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT
CONSTITUTES A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE
TRUSTEE SHALL BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT
SELLER SHALL BE VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN
EACH CASE WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH
MORTGAGE LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
XXII. CLOSING.
A. THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX LLP, 000 XXXXX XXXXXX, XXX XXXX, XX 00000 AT 9:00 A.M., NEW
YORK TIME, ON THE CLOSING DATE. THE CLOSING SHALL BE SUBJECT TO EACH OF THE
FOLLOWING CONDITIONS:
1. ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT
26
2 HERETO) SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE.
2. ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED BY ALL SIGNATORIES AS REQUIRED PURSUANT TO
THE RESPECTIVE TERMS THEREOF.
3. SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
4. THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
5. ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
6. SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
7. THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
8. NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
9. SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
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B. EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE
OBLIGATIONS HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE
MORTGAGE LOANS ON THE CLOSING DATE.
XXIII. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
A. THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
B. A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS
COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED ON OR PRIOR TO THE CLOSING DATE.
C. TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
D. A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF NEW YORK
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
E. A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
F. AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
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1. SELLER IS VALIDLY EXISTING UNDER NEW YORK LAW AND HAS FULL CORPORATE
POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS
HAVE BEEN OBTAINED.
4. NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF
SELLER, (B) TO THE KNOWLEDGE OF SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY
TERM OR PROVISION OF ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE,
TO WHICH SELLER IS A PARTY OR BY WHICH IT OR ANY OF ITS ASSETS IS BOUND OR
RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON
ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH INDENTURE, MORTGAGE,
CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS AGREEMENT, OR (C)
CONFLICTS WITH OR RESULTS IN A BREACH OR VIOLATION OF ANY LAW, RULE, REGULATION,
ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF
THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR
DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE
CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF
SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY
ON ITS BUSINESS SUBSTANTIALLY AS NOW CONDUCTED.
5. TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
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6. THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
G. SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
H. A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
I. SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
J. AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
K. SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
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L. AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
XXIV. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding dated July 29, 2005.
XXV. NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx Xxxxxxx Capital
I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department (or
such other address as may hereafter be furnished in writing by Purchaser), or if
(ii) to Seller, addressed to Seller at Four Gateway Center, 8th Floor, 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx (or to
such other address as Seller may designate in writing) (with a copy to the
attention of Xxxx Xxxxx, Legal Department).
XXVI. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty
or covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
XXVII. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement and the Pooling and Servicing Agreement.
XXVIII. SURVIVAL. Each party hereto agrees that the representations, warranties
and agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue
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in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
XXIX. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
XXX. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
XXXI. MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
XXXII. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
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EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such Title Insurance Policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c) or
(d), individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate
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the related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, (x) all of the material improvements on the
related
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Mortgaged Property that were considered in determining the appraised value of
the Mortgaged Property lay wholly within the boundaries and building restriction
lines of such property, except for encroachments that are insured against by the
Title Policy referred to herein or that do not materially and adversely affect
the value or marketability of such Mortgaged Property, (y) no improvements on
adjoining properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
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(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental site assessment within 18 months
prior to the Cut-Off Date, an environmental site assessment
prepared to ASTM standards, or an update of a previous
assessment, was performed with respect to each Mortgaged Property
in connection with the origination or the sale of the related
Mortgage Loan, a report of the most recent assessment with
respect to each Mortgaged Property (an "Environmental Report")
has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not
disclosed in such Environmental Report. Each Mortgage requires
the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such
Environmental Report disclosed the existence of a material and
adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition
is remediated or (iii) the related Mortgagor was required either
to provide additional security that was deemed to be sufficient
by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. Each Mortgage Loan
set forth on Schedule C to this Exhibit 2 (each, a "Schedule C
Loan") is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule C (the "Policy
Issuer") and effective as of the date thereof (the "Environmental
Insurance Policy"). Except as set forth on Schedule A to this
Exhibit 2, with respect to each Schedule C Loan, (i) to the
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) a property condition or engineering
report was prepared with respect to lead based paint ("LBP"),
asbestos containing materials ("ACM") and radon gas ("RG") at
each related Mortgaged Property and (b) if such report disclosed
the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security, or establish with the lender
a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller for the remediation of the problem
and/or (B) agreed in the Mortgage Loan documents to establish an
operations and maintenance plan after the closing of the Mortgage
Loan, (iii) on the effective date of the Environmental Insurance
Policy, Seller as originator had no knowledge of any material and
adverse environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report
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provided to the Policy Issuer and (iv) the premium of any
Environmental Insurance Policy has been paid through the maturity
of the policy's term and the term of such policy extends at least
five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
(i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or
local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws does
not have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
Sections 6901 et seq.), the Federal Water Pollution Control Act
as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor or any guarantor of any non-recourse exceptions
and environmental liability is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or
other
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similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the Mortgaged Property, and not less
than the amount necessary to avoid the operation of any co-insurance provisions
with respect to the Mortgaged Property, and the policy contains no provisions
for a deduction for depreciation; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to twelve months of operations of
the Mortgaged Property estimated as of the date of origination by the originator
of such Mortgage Loan consistent with its capital markets conduit lending
practices; (c) a flood insurance policy (if any portion of buildings or other
structures on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy not less than $1
million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
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17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease" which term shall include any related
estoppel letter or lender protection agreement between Seller and related
lessor), by the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease does not prohibit the current
use of the Mortgaged Property and does not prohibit the interest
of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser upon notice to, but without the consent of, the
lessor thereunder (or, if such consent is required for assignment
to Purchaser, it has been obtained prior to the Closing Date) and
is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the
consent of, such lessor or if such lessor's consent is required
it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease (A) requires the lessor under such Ground Lease
to give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given
under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice has been delivered to such
holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary
from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease,
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which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event
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the computation described in clauses (a)(i) and (a)(ii) of this paragraph 19
shall be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loans); or
(b) substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws and any other applicable material laws in effect at its
date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
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meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
or provides for negative amortization (except that the ARD Loan may provide for
the accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property. Neither the Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. There exists no material default, breach,
violation or event of acceleration (and no event which, with the passage of time
or the giving of notice, or both, would constitute any of the foregoing) under
the documents evidencing or securing the Mortgage Loan, in any such case to the
extent the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this representation
and warranty does not address or otherwise cover any default, breach, violation
or event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller.
28. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
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32. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged Property
and (b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
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38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or provides
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States.
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2).
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Seller's knowledge, do not, as of the date hereof, specifically
exclude Acts of Terrorism from coverage, or if such coverage is excluded, it is
covered by a separate terrorism insurance policy. With respect to each of the
Mortgage Loans, the related Mortgage Loan documents do not waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulation
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulation
Sections 1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as
a qualified mortgage, or any substantially similar provision).
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44. No Fraud in Origination. A court of competent jurisdiction will
not find, in a final non-appealable judgment, that an employee of Seller
actively participated with the Borrower in any intentional fraud in connection
with the origination of the Mortgage Loan. To the Seller's knowledge, no
Borrower is guilty of defrauding or making an intentional material
misrepresentation to Seller in connection with the origination of the Mortgage
Loan.
45. Foreclosure Property. The Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to the
Purchaser, and the Seller does not know or, to the Seller's knowledge, have
reason to know that any Mortgage Loan will default. The representations in this
paragraph 45 are being made solely for the purpose of determining whether the
Mortgaged Property, if acquired by the Trust, would qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, and may not be
relied upon or used for any other purpose. Such representations shall not be
construed as a guarantee to any degree that defaults or losses will not occur.
46. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
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SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
SCHEDULE C
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Prudential Mortgage Capital Funding, LLC
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 29, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this 29th day of July, 2005.
SELLER: PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-3
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT (XXXXX)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 29, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE.......................................... 2
2. CONVEYANCE OF MORTGAGE LOANS................................... 2
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW......... 12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER......... 14
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER......................................................... 18
6. CLOSING........................................................ 25
7. CLOSING DOCUMENTS.............................................. 26
8. COSTS.......................................................... 29
9. NOTICES........................................................ 29
10. SEVERABILITY OF PROVISIONS..................................... 30
11. FURTHER ASSURANCES............................................. 30
12. SURVIVAL....................................................... 30
13. GOVERNING LAW.................................................. 30
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT................... 31
15. MISCELLANEOUS.................................................. 31
16. ENTIRE AGREEMENT............................................... 31
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)........................................................... 16
Agreement.................................................................. 1
Certificate Purchase Agreement............................................. 1
Certificates............................................................... 1
Closing Date............................................................... 2
Collateral Information..................................................... 10
Crossed Mortgage Loans..................................................... 16
Defective Mortgage Loan.................................................... 16
Final Judicial Determination............................................... 19
Indemnification Agreement.................................................. 13
Initial Purchaser.......................................................... 1
Material Breach............................................................ 15
Material Document Defect................................................... 15
Memorandum................................................................. 1
Mortgage File.............................................................. 3
Mortgage Loan Schedule..................................................... 2
Mortgage Loans............................................................. 1
Officer's Certificate...................................................... 6
Pooling and Servicing Agreement............................................ 1
Private Certificates....................................................... 1
Prospectus Supplement...................................................... 1
Public Certificates........................................................ 1
Purchaser.................................................................. 1
Repurchased Loan........................................................... 16
Seller..................................................................... 1
Special Servicer........................................................... 1
Trust...................................................................... 1
Trustee.................................................................... 1
Underwriters............................................................... 1
Underwriting Agreement..................................................... 1
i
MORTGAGE LOAN PURCHASE AGREEMENT
(XXXXX LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 29,
2005, between Xxxxx Fargo Bank, National Association (the "Seller"), and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August 1, 2005, between Purchaser, as
depositor, Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo
Bank, National Association, as a master servicer, CWCapital Asset Management
LLC, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent,
and Xxxxx Fargo Bank, National Association, as paying agent and certificate
registrar. In exchange for the Mortgage Loans, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement. The term
"Master Servicer" as used herein shall mean Xxxxx Fargo Bank, National
Association in its capacity as a master servicer under the Pooling and Servicing
Agreement unless otherwise specified.
The Class A-1, Class A-1A, Class A-2A, Class A-2B, Class A-AB, Class
A-3, Class A-4A, Class A-4B, Class X-2, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, Banc of America Securities LLC,
Greenwich Capital Markets, Inc. and SunTrust Capital Markets, Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated July 29, 2005 (the "Underwriting Agreement"), and the
Class X-1, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class
R-III Certificates (the "Private Certificates") will be sold by Purchaser to
Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial Purchaser,
dated July 29, 2005 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 7, 2005, as supplemented by a Prospectus Supplement dated July 29,
2005 (together with the Prospectus, the "Prospectus Supplement"), and the
Initial Purchaser will offer the Private Certificates for sale in transactions
exempt from the registration requirements of the Securities Act of 1933 pursuant
to a Private Placement Memorandum dated July 29, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1
XXXIII. AGREEMENT TO PURCHASE.
A. SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING
RELEASED BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE
LOAN SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS AUGUST 1, 2005.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $377,135,039. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON AUGUST 11, 2005 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
B. ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND INTEREST
IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS AGREEMENT (TO THE
EXTENT SET FORTH IN SECTION 14).
XXXIV. CONVEYANCE OF MORTGAGE LOANS.
A. EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE
CONSIDERATION REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE
CONDITIONS SPECIFIED IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER,
ASSIGN, SET OVER AND OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS
SPECIFICALLY PROVIDED HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH
THE UNDERSTANDING THAT A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED
AUGUST 1, 2005, WILL BE EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO
THE MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING
DATE. THE MORTGAGE LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR
PRIOR TO THE CLOSING DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT
AND THE POOLING AND SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND
ASSIGNMENT, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF
PURCHASER, ON OR PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN
CLAUSE 2.2.1 HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH
BUSINESS DAY AFTER THE CLOSING DATE, FIVE LIMITED
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POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE THAT NO SUCH POWER OF
ATTORNEY SHALL BE USED WITH RESPECT TO ANY MORTGAGE LOAN BY OR UNDER
AUTHORIZATION BY ANY PARTY HERETO EXCEPT TO THE EXTENT THAT THE ABSENCE OF A
DOCUMENT DESCRIBED IN THE SECOND PRECEDING SENTENCE WITH RESPECT TO SUCH
MORTGAGE LOAN REMAINS UNREMEDIED AS OF THE EARLIER OF (I) THE DATE THAT IS 180
DAYS FOLLOWING THE DELIVERY OF NOTICE OF SUCH ABSENCE TO SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
B. ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE
ARE TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT
ALL TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6,
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WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE ORIGINAL MORTGAGE NOTE
IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH A COPY OF THE MORTGAGE
NOTE ATTACHED THERETO;
2. THE ORIGINAL MORTGAGE, WITH EVIDENCE OF RECORDING THEREON, AND, IF THE
MORTGAGE WAS EXECUTED PURSUANT TO A POWER OF ATTORNEY, A CERTIFIED TRUE COPY OF
THE POWER OF ATTORNEY CERTIFIED BY THE PUBLIC RECORDER'S OFFICE, WITH EVIDENCE
OF RECORDING THEREON (IF RECORDING IS CUSTOMARY IN THE JURISDICTION IN WHICH
SUCH POWER OF ATTORNEY WAS EXECUTED), OR CERTIFIED BY A TITLE INSURANCE COMPANY
OR ESCROW COMPANY TO BE A TRUE COPY THEREOF; PROVIDED THAT IF SUCH ORIGINAL
MORTGAGE CANNOT BE DELIVERED WITH EVIDENCE OF RECORDING THEREON ON OR PRIOR TO
THE 45TH DAY FOLLOWING THE CLOSING DATE BECAUSE OF A DELAY CAUSED BY THE PUBLIC
RECORDING OFFICE WHERE SUCH ORIGINAL MORTGAGE HAS BEEN DELIVERED FOR RECORDATION
OR BECAUSE SUCH ORIGINAL MORTGAGE HAS BEEN LOST, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL MORTGAGE THAT HAS BEEN LOST AFTER
RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY RECORDING OFFICE WHERE
SUCH MORTGAGE IS RECORDED THAT SUCH COPY IS A TRUE AND COMPLETE COPY OF THE
ORIGINAL RECORDED MORTGAGE;
3. THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) IN
THE CASE OF AN ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT THAT
HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY
RECORDING OFFICE WHERE SUCH DOCUMENT IS RECORDED THAT SUCH COPY IS A TRUE AND
COMPLETE COPY OF THE ORIGINAL RECORDED MODIFICATION, CONSOLIDATION OR EXTENSION
AGREEMENT, AND THE ORIGINALS OF ALL ASSUMPTION AGREEMENTS, IF ANY;
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4. AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I
INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6," PROVIDED,
IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH ASSIGNMENTS WILL BE
REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND INSTEAD, SELLER SHALL TAKE
ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF
THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF
RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND
SHALL DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS
SHOWN AS THE OWNER ON THE RECORD OF MERS;
5. ORIGINALS OF ALL INTERVENING ASSIGNMENTS OF MORTGAGE (EXCEPT WITH
RESPECT TO ANY MORTGAGE THAT HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEES), IF ANY, WITH EVIDENCE OF RECORDING THEREON OR, IF SUCH ORIGINAL
ASSIGNMENTS OF MORTGAGE HAVE BEEN DELIVERED TO THE APPROPRIATE RECORDER'S OFFICE
FOR RECORDATION, CERTIFIED TRUE COPIES OF SUCH ASSIGNMENTS OF MORTGAGE CERTIFIED
BY SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY SELLER OR, IF ANY
ORIGINAL INTERVENING ASSIGNMENT OF MORTGAGE HAS NOT YET BEEN RETURNED ON OR
PRIOR TO THE 45TH DAY FOLLOWING THE CLOSING DATE FROM THE APPLICABLE RECORDING
OFFICE OR HAS BEEN LOST, A TRUE AND CORRECT COPY THEREOF, TOGETHER WITH (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE THAT HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE
APPROPRIATE COUNTY RECORDING OFFICE WHERE SUCH ASSIGNMENT IS RECORDED THAT SUCH
COPY IS A TRUE AND COMPLETE COPY OF THE ORIGINAL RECORDED INTERVENING ASSIGNMENT
OF MORTGAGE;
6. IF THE RELATED ASSIGNMENT OF LEASES IS SEPARATE FROM THE MORTGAGE, THE
ORIGINAL OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF RECORDING THEREON OR, IF
SUCH ASSIGNMENT OF LEASES HAS NOT BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY
OF SUCH ASSIGNMENT OF LEASES CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
AN ORIGINAL OF EACH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF
RECORDING THEREON AND SHOWING A COMPLETE RECORDED CHAIN OF ASSIGNMENT FROM THE
NAMED ASSIGNEE TO
5
THE HOLDER OF RECORD, AND IF ANY SUCH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES
HAS NOT BEEN RETURNED FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY OF
SUCH ASSIGNMENT CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX
CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6,"
WHICH ASSIGNMENT MAY BE EFFECTED IN THE RELATED ASSIGNMENT OF MORTGAGE,
PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEE, NO ASSIGNMENT OF ASSIGNMENT OF LEASES IN FAVOR OF THE TRUSTEE WILL BE
REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL ACTIONS
AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE RELATED
MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING TRANSFERS
OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL DELIVER TO THE
SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON
THE RECORD OF MERS;
7. THE ORIGINAL OR A COPY OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL
SECURITY FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
8. THE ORIGINAL TITLE INSURANCE POLICY, OR IN THE EVENT SUCH ORIGINAL TITLE
INSURANCE POLICY HAS NOT BEEN ISSUED, AN ORIGINAL BINDER OR ACTUAL TITLE
COMMITMENT OR A COPY THEREOF CERTIFIED BY THE TITLE COMPANY WITH THE ORIGINAL
TITLE INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE OR A
PRELIMINARY TITLE REPORT WITH AN ORIGINAL TITLE INSURANCE POLICY TO FOLLOW
WITHIN 180 DAYS OF THE CLOSING DATE;
9. (A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS
THE OWNER ON THE RECORD OF MERS;
10. COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH
6
GROUND LEASE AND THERE IS A LIEN IN FAVOR OF THE MORTGAGEE IN SUCH LEASE;
11. COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
12. EITHER (A) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE ASSIGNED AND
DELIVERED TO THE TRUSTEE ON BEHALF OF THE TRUST WITH A COPY TO BE HELD BY THE
MASTER SERVICER, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY,
CONSTITUTING ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD
BY THE MASTER SERVICER ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE HELD BY THE
TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH DOCUMENTS
EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND SERVICING
AGREEMENT (IT BEING UNDERSTOOD THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF
SUCH LETTER OF CREDIT BELONG TO THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE
CLOSING DATE, THE BANK ISSUING THE LETTER OF CREDIT THAT THE LETTER OF CREDIT
AND THE PROCEEDS THEREOF BELONG TO THE TRUST, AND TO USE REASONABLE EFFORTS TO
OBTAIN WITHIN 30 DAYS (BUT IN ANY EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE
CLOSING DATE, AN ACKNOWLEDGEMENT THEREOF BY THE BANK (WITH A COPY OF SUCH
ACKNOWLEDGEMENT TO BE SENT TO THE TRUSTEE) AND (C) TO INDEMNIFY THE TRUST FOR
ANY LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE
FAILURE OF SELLER TO ASSIGN THE LETTER OF CREDIT HEREUNDER). IN THE CASE OF
CLAUSE (B) ABOVE, ANY LETTER OF CREDIT HELD BY THE MASTER SERVICER SHALL BE HELD
IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE MASTER SERVICER SELLS ITS
RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN, THE MASTER SERVICER HAS AGREED
TO ASSIGN THE APPLICABLE LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF
THE SPECIAL SERVICER TO SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH
CASE, AT THE EXPENSE OF THE MASTER SERVICER. THE MASTER SERVICER HAS AGREED TO
INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE INEFFECTIVENESS OF SUCH
ASSIGNMENT;
13. THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
14. COPIES OF THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH
OTHER MORTGAGED PROPERTIES SECURING MORTGAGE
7
LOANS WITH A CUT-OFF DATE PRINCIPAL BALANCE EQUAL TO OR GREATER THAN
$20,000,000;
15. ANY ENVIRONMENTAL INSURANCE POLICY; AND
16. ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Master Servicer or the Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to the Master Servicer within 30 days of the Closing Date.
Any failure to deliver any ground lease shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
C. THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED
TO IN SECTIONS 2.2.4 AND 2.2.6 MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH THE THIRD SUCCEEDING PARAGRAPH, THE ASSIGNMENTS OF MORTGAGES,
THE ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
D. IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN,
ANY OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3,
2.2.5 OR 2.2.6, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN
DELIVERED FOR RECORDATION WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A
PHOTOCOPY THEREOF (CERTIFIED BY THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A
TRUE AND COMPLETE COPY OF THE ORIGINAL THEREOF
8
SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY PERIOD, SELLER SHALL
THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE RECORDED DOCUMENT (OR
WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE TRUSTEE MAY CONSENT TO,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG AS SELLER IS, AS
CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY, IN GOOD FAITH
ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE SUCH ORIGINAL
OR PHOTOCOPY).
E. THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE THEREON AFTER THE CUT-OFF DATE, ALL OTHER
PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER THAN SCHEDULED
PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL PAYMENTS OF
INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON THE CUT-OFF
DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR BEFORE THE
CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO SELLER.
F. WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR REAL PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4
AND 2.2.6(II) ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL
DELIVER AND PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE
TO BE SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED
TO IN CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED
UNRECORDED OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER
SHALL PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT
ITS OWN EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY
THE TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
G. DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS
SUBCONTRACTORS THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE
DELIVERED TO THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF
THE MASTER SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER
THE CLOSING DATE.
H. THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER SHALL INCLUDE,
TO THE EXTENT REQUIRED TO BE (AND ACTUALLY) DELIVERED TO SELLER PURSUANT TO THE
APPLICABLE MORTGAGE LOAN DOCUMENTS, COPIES OF THE FOLLOWING ITEMS: THE MORTGAGE
NOTE, ANY MORTGAGE, THE ASSIGNMENT OF LEASES AND THE ASSIGNMENT OF
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MORTGAGE, ANY GUARANTY/INDEMNITY AGREEMENT, ANY LOAN AGREEMENT, THE INSURANCE
POLICIES OR CERTIFICATES, AS APPLICABLE, THE PROPERTY INSPECTION REPORTS, ANY
FINANCIAL STATEMENTS ON THE PROPERTY, ANY ESCROW ANALYSIS, THE TAX BILLS, THE
APPRAISAL, THE ENVIRONMENTAL REPORT, THE ENGINEERING REPORT, THE ASSET SUMMARY,
FINANCIAL INFORMATION ON THE BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF
CREDIT, ANY INTERCREDITOR AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES.
I. UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS OF THE TYPE SET FORTH IN SECTION 2.8
ABOVE WITH RESPECT TO THE RELATED MORTGAGE LOAN PREPARED BY OR THAT COME INTO
THE POSSESSION OF SELLER SHALL IMMEDIATELY VEST IN PURCHASER AND ITS ASSIGNS,
AND SHALL BE DELIVERED PROMPTLY BY SELLER TO OR ON BEHALF OF EITHER THE TRUSTEE
OR THE MASTER SERVICER AS SET FORTH HEREIN. SELLER'S AND PURCHASER'S RECORDS
SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER TO PURCHASER AND
ITS ASSIGNS AS A SALE.
J. IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, OR IF FOR ANY OTHER
REASON THIS AGREEMENT IS HELD OR DEEMED TO CREATE A SECURITY INTEREST IN THE
MORTGAGE LOANS OR ANY RELATED PROPERTY, THEN:
1. THIS AGREEMENT SHALL BE DEEMED TO BE A SECURITY AGREEMENT; AND
2. THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
A. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT AND INVESTMENT PROPERTY CONSISTING OF, ARISING
FROM OR RELATING TO
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ANY OF THE FOLLOWING PROPERTY: THE MORTGAGE LOANS IDENTIFIED ON THE
MORTGAGE LOAN SCHEDULE, INCLUDING THE RELATED MORTGAGE NOTES, MORTGAGES,
SECURITY AGREEMENTS, AND TITLE, HAZARD AND OTHER INSURANCE POLICIES, ALL
DISTRIBUTIONS WITH RESPECT THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL
SUBSTITUTE OR REPLACEMENT MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT
THERETO, AND THE MORTGAGE FILES;
B. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT, INVESTMENT PROPERTY AND OTHER RIGHTS ARISING
FROM OR BY VIRTUE OF THE DISPOSITION OF, OR COLLECTIONS WITH RESPECT TO, OR
INSURANCE PROCEEDS PAYABLE WITH RESPECT TO, OR CLAIMS AGAINST OTHER PERSONS
WITH RESPECT TO, ALL OR ANY PART OF THE COLLATERAL DESCRIBED IN CLAUSE (A)
ABOVE (INCLUDING ANY ACCRUED DISCOUNT REALIZED ON LIQUIDATION OF ANY
INVESTMENT PURCHASED AT A DISCOUNT); AND
C. ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
K. THE POSSESSION BY PURCHASER OR ITS DESIGNEE OF THE MORTGAGE NOTES, THE
MORTGAGES, AND SUCH OTHER GOODS, LETTERS OF CREDIT, ADVICES OF CREDIT,
INSTRUMENTS, MONEY, DOCUMENTS, CHATTEL PAPER OR CERTIFICATED SECURITIES SHALL BE
DEEMED TO BE POSSESSION BY THE SECURED PARTY OR POSSESSION BY A PURCHASER FOR
PURPOSES OF PERFECTING THE SECURITY INTEREST PURSUANT TO THE UNIFORM COMMERCIAL
CODE (INCLUDING, WITHOUT LIMITATION, SECTIONS 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
L. NOTIFICATIONS TO PERSONS HOLDING SUCH PROPERTY, AND ACKNOWLEDGMENTS,
RECEIPTS, OR CONFIRMATIONS FROM PERSONS HOLDING SUCH PROPERTY, SHALL BE DEEMED
TO BE NOTIFICATIONS TO, OR ACKNOWLEDGMENTS, RECEIPTS OR CONFIRMATIONS FROM,
SECURITIES INTERMEDIARIES, BAILEES OR AGENTS OF, OR PERSONS HOLDING FOR,
PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
M. SELLER SHALL, TO THE EXTENT CONSISTENT WITH THIS AGREEMENT AND UPON REQUEST
BY OR ON BEHALF OF PURCHASER, TAKE SUCH REASONABLE ACTIONS AS MAY BE NECESSARY
TO ENSURE THAT, IF THIS AGREEMENT WERE DEEMED TO CREATE A SECURITY INTEREST IN
THE PROPERTY DESCRIBED ABOVE, SUCH SECURITY INTEREST WOULD BE DEEMED TO BE A
PERFECTED SECURITY INTEREST OF FIRST PRIORITY UNDER APPLICABLE LAW AND WILL BE
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MAINTAINED AS SUCH THROUGHOUT THE TERM OF THE AGREEMENT. IN SUCH CASE, SELLER
SHALL FILE ALL FILINGS NECESSARY TO MAINTAIN THE EFFECTIVENESS OF ANY ORIGINAL
FILINGS NECESSARY UNDER THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
JURISDICTION TO PERFECT SUCH SECURITY INTEREST IN SUCH PROPERTY. IN CONNECTION
HEREWITH, PURCHASER SHALL HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY
AND CREDITOR UNDER THE UNIFORM COMMERCIAL CODE AS IN FORCE IN THE RELEVANT
JURISDICTION.
N. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE LOAN AS TO
WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1) REQUIRED TO BE
DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER PURSUANT TO THIS
SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR IS NOT PROPERLY
EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE OF THE RELATED
MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A WAIVER OF SUCH
OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND ASSIGNS' RIGHTS IN
RESPECT THEREOF PURSUANT TO SECTION 5.
XXXV. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW. A. SELLER SHALL
(I) DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE ACCEPTABLE TO
PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS AS MAY BE
REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR FILES
(COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS PROPOSED
TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE
LOANS PURSUANT TO SECTION 5 HEREOF.
B. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
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CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER WITH ANY ADDITIONAL INFORMATION IDENTIFIED BY THE
MASTER SERVICER AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT
THAT SUCH INFORMATION IS AVAILABLE.
C. PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE
DESIGNEES OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF
THE IDENTITY OF SUCH DESIGNEE OR AGENT.
D. PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE SUCH INFORMATION. IF
PURCHASER IS REQUIRED TO DISCLOSE IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE PRECEDING
SENTENCE, PURCHASER SHALL PROVIDE TO SELLER A COPY OF THE PROPOSED FORM OF SUCH
DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE AND SELLER SHALL PROMPTLY, AND IN ANY
EVENT WITHIN TWO BUSINESS DAYS, NOTIFY PURCHASER OF ANY INACCURACIES THEREIN, IN
WHICH CASE PURCHASER SHALL MODIFY SUCH FORM IN A MANNER THAT CORRECTS SUCH
INACCURACIES. IF PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE SECOND PRECEDING
SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
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COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
XXXVI. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
A. TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN (SUBJECT
TO THE LAST PARAGRAPH OF THIS SECTION 4.1) AS OF THE DATE HEREOF (OR AS OF SUCH
OTHER DATE SPECIFICALLY SET FORTH IN THE PARTICULAR REPRESENTATION AND WARRANTY)
EACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT
AS OTHERWISE SET FORTH ON SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER
REPRESENTS AND WARRANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
1. SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A NATIONAL BANKING
ASSOCIATION IN GOOD STANDING UNDER THE LAWS OF THE UNITED STATES. SELLER HAS THE
REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO
TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER
AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS CONTEMPLATED
BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT
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SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF THE PROVISIONS OF
THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER
APPLICABLE SECURITIES LAWS.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
4. NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SUBSECTION 4.1.3, ANY LAW, RULE, REGULATION, ORDER, JUDGMENT,
WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES
CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR
CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER
OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
15
5. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
6. ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
7. TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED JULY 29, 2005, BETWEEN SELLER, PURCHASER, THE
UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
RELATING TO THE MORTGAGE LOANS DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS
SUBPARAGRAPH 4.1.7 SHALL RUN EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO
OTHER PARTY.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
B. TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS
AND WARRANTS TO SELLER AS OF THE DATE HEREOF:
1. PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
2. PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS
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AGREEMENT. PURCHASER HAS DULY AND VALIDLY AUTHORIZED THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND HAS DULY AND VALIDLY EXECUTED AND DELIVERED
THIS AGREEMENT. THIS AGREEMENT, ASSUMING DUE AUTHORIZATION, EXECUTION AND
DELIVERY BY SELLER, CONSTITUTES THE VALID AND BINDING OBLIGATION OF PURCHASER,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER SUCH
ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
4. NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER,
OR RESULT IN A BREACH OF, ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR
INDENTURE TO WHICH PURCHASER IS A PARTY OR THAT MAY BE APPLICABLE TO PURCHASER
OR ITS ASSETS.
5. PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
6. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL
17
CONDITION OF PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF
PURCHASER TO PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
7. PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
XXXVII. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
A. IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE
TRUSTEE ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY
OF PURCHASER'S ASSIGNMENT OF ITS RIGHTS HEREUNDER TO THE TRUSTEE, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO (EACH AS OF THE
DATE HEREOF UNLESS OTHERWISE SPECIFIED).
B. IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE
DELIVERED TO THE TRUSTEE PURSUANT TO SECTION 2 IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE SUCH
DEFECT OR BREACH, EITHER (I) MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF
THE HOLDERS OF THE CERTIFICATES IN THE RELATED MORTGAGE LOAN, OR (II) BOTH (A)
THE DOCUMENT DEFECT OR BREACH MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE
MORTGAGE LOAN AND (B) THE MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR
REHABILITATED MORTGAGE LOAN (SUCH A DOCUMENT DEFECT DESCRIBED IN THE PRECEDING
CLAUSE (I) OR (II), A "MATERIAL DOCUMENT DEFECT" AND SUCH A BREACH DESCRIBED IN
THE PRECEDING CLAUSE (I) OR (II) A "MATERIAL BREACH"), THE PARTY DISCOVERING
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH SHALL PROMPTLY NOTIFY, IN
WRITING, THE OTHER PARTIES; PROVIDED THAT ANY BREACH OF
18
THE REPRESENTATION AND WARRANTY CONTAINED IN PARAGRAPH (41) OF SUCH EXHIBIT 2
SHALL CONSTITUTE A MATERIAL BREACH ONLY IF SUCH PREPAYMENT PREMIUM OR YIELD
MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY" FOR COMMERCIAL MORTGAGE LOANS AS
EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO SUCH EFFECT OR (II) A
DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH PROVISION IS NOT
CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) UPON BECOMING
AWARE OF ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, THE MASTER
SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT LATER
THAN 90 DAYS FROM SELLER'S RECEIPT OF THE NOTICE OF SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH, CURE SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL
BREACH, AS THE CASE MAY BE, IN ALL MATERIAL RESPECTS; PROVIDED, HOWEVER, THAT IF
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, CANNOT BE
CORRECTED OR CURED IN ALL MATERIAL RESPECTS WITHIN SUCH 90 DAY PERIOD, AND SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH WOULD NOT CAUSE THE MORTGAGE LOAN TO
BE OTHER THAN A "QUALIFIED MORTGAGE"(AS DEFINED IN THE CODE) BUT SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL
DOCUMENT DEFECT, (X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE
LOAN AND A SERVICING TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY
DEFAULT OR AS DESCRIBED IN CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF
"SERVICING TRANSFER EVENT" IN THE POOLING AND SERVICING AGREEMENT AND (Y) THE
MATERIAL DOCUMENT DEFECT WAS IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER
BY THE TRUSTEE PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT
NOT LESS THAN 90 DAYS PRIOR TO THE DELIVERY OF THE NOTICE OF SUCH MATERIAL
DOCUMENT DEFECT. THE PARTIES ACKNOWLEDGE THAT NEITHER DELIVERY OF A
CERTIFICATION OR SCHEDULE OF EXCEPTIONS TO SELLER PURSUANT TO SECTION 2.2 OF THE
POOLING AND SERVICING AGREEMENT OR OTHERWISE NOR POSSESSION OF SUCH
CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN AND OF ITSELF, CONSTITUTE DELIVERY
OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR KNOWLEDGE OR AWARENESS BY SELLER OF
ANY MATERIAL DOCUMENT DEFECT LISTED THEREIN.
C. SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH CANNOT BE CORRECTED OR CURED WITHIN THE ABOVE CURE PERIODS,
SELLER SHALL, ON OR BEFORE THE TERMINATION OF SUCH CURE PERIODS, EITHER (I)
REPURCHASE THE AFFECTED MORTGAGE LOAN OR REO MORTGAGE LOAN FROM PURCHASER OR ITS
ASSIGNEE AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT, OR (II) IF WITHIN THE THREE-MONTH PERIOD COMMENCING ON THE CLOSING
DATE (OR WITHIN THE TWO-YEAR PERIOD COMMENCING ON THE CLOSING DATE IF THE
RELATED MORTGAGE LOAN IS A
19
"DEFECTIVE OBLIGATION" WITHIN THE MEANING OF SECTION 860G(A)(4)(B)(II) OF THE
CODE AND TREASURY REGULATION SECTION 1.860G-2(F)), AT ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN. IF SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH WOULD CAUSE THE MORTGAGE LOAN TO BE OTHER THAN A
"QUALIFIED MORTGAGE" (AS DEFINED IN THE CODE), THEN NOTWITHSTANDING THE PREVIOUS
SENTENCE OR THE PREVIOUS PARAGRAPH, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
D. IF (X) A MORTGAGE LOAN IS TO BE REPURCHASED OR REPLACED AS CONTEMPLATED ABOVE
(A "DEFECTIVE MORTGAGE LOAN"), (Y) SUCH DEFECTIVE MORTGAGE LOAN IS
CROSS-COLLATERALIZED AND CROSS-DEFAULTED WITH ONE OR MORE OTHER MORTGAGE LOANS
("CROSSED MORTGAGE LOANS") AND (Z) THE APPLICABLE DOCUMENT DEFECT OR BREACH DOES
NOT CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY
BE, AS TO SUCH CROSSED MORTGAGE LOANS (WITHOUT REGARD TO THIS PARAGRAPH), THEN
THE APPLICABLE DOCUMENT DEFECT OR BREACH (AS THE CASE MAY BE) SHALL BE DEEMED TO
CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, AS
TO EACH SUCH CROSSED MORTGAGE LOAN FOR PURPOSES OF THE ABOVE PROVISIONS, AND
SELLER SHALL BE OBLIGATED TO REPURCHASE OR REPLACE EACH SUCH CROSSED MORTGAGE
LOAN IN ACCORDANCE WITH THE PROVISIONS ABOVE, UNLESS, IN THE CASE OF SUCH BREACH
OR DOCUMENT DEFECT, (A) SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE
TRUSTEE AT THE EXPENSE OF SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE
TRUSTEE, IT WOULD BE USUAL AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO
OBTAIN A NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS
WOULD BE SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE
LOANS AS TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED
WITHOUT REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (EXCLUDING THE AFFECTED
LOAN(S)) FOR THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR
REPLACEMENT IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (INCLUDING THE AFFECTED
LOANS(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT AND (B) THE
DEBT SERVICE COVERAGE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOAN(S)) FOR THE FOUR PRECEDING CALENDAR QUARTERS PRECEDING THE
REPURCHASE OR REPLACEMENT, AND (II) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED
MORTGAGE LOANS (EXCLUDING THE AFFECTED LOAN(S)) IS NOT GREATER THAN THE GREATER
OF (A) THE LOAN-TO-VALUE RATIO, EXPRESSED AS A WHOLE NUMBER (TAKEN TO
20
ONE DECIMAL PLACE), FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED
LOAN(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT PLUS 10% AND
(B) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOANS(S)), AT THE TIME OF REPURCHASE OR REPLACEMENT. THE DETERMINATION
OF THE MASTER SERVICER AS TO WHETHER THE CONDITIONS SET FORTH ABOVE HAVE BEEN
SATISFIED SHALL BE CONCLUSIVE AND BINDING IN THE ABSENCE OF MANIFEST ERROR. THE
MASTER SERVICER WILL BE ENTITLED TO CAUSE TO BE DELIVERED, OR DIRECT SELLER TO
(IN WHICH CASE SELLER SHALL) CAUSE TO BE DELIVERED TO THE MASTER SERVICER, AN
APPRAISAL OF ANY OR ALL OF THE RELATED MORTGAGED PROPERTIES FOR PURPOSES OF
DETERMINING WHETHER THE CONDITION SET FORTH IN CLAUSE (II) ABOVE HAS BEEN
SATISFIED, IN EACH CASE AT THE EXPENSE OF SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
E. WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER) CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND
PURCHASER HEREBY AGREE TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE
OTHER'S PRIMARY COLLATERAL BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY
COLLATERAL SECURING THEIR RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO
THE TRUSTEE, THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOANS STILL HELD BY
THE TRUSTEE, SO LONG AS SUCH EXERCISE DOES NOT IMPAIR THE ABILITY OF THE OTHER
PARTY TO EXERCISE ITS REMEDIES AGAINST ITS PRIMARY COLLATERAL. IF THE EXERCISE
OF REMEDIES BY ONE PARTY WOULD IMPAIR THE ABILITY OF THE OTHER PARTY TO EXERCISE
ITS REMEDIES WITH RESPECT TO THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOAN
OR MORTGAGE LOANS HELD BY SUCH PARTY, THEN BOTH PARTIES SHALL FORBEAR FROM
EXERCISING SUCH REMEDIES UNTIL THE LOAN DOCUMENTS EVIDENCING AND SECURING THE
RELEVANT MORTGAGE LOANS CAN BE MODIFIED IN A MANNER THAT COMPLIES WITH THE
POOLING AND SERVICING AGREEMENT TO REMOVE THE THREAT OF IMPAIRMENT AS A RESULT
OF THE EXERCISE OF REMEDIES. ANY RESERVE OR OTHER CASH COLLATERAL OR LETTERS OF
CREDIT SECURING THE CROSSED MORTGAGE LOANS SHALL BE ALLOCATED BETWEEN SUCH
MORTGAGE LOANS IN ACCORDANCE WITH THE MORTGAGE LOAN DOCUMENTS, OR OTHERWISE ON A
PRO RATA BASIS BASED UPON THEIR OUTSTANDING PRINCIPAL BALANCES. ALL OTHER TERMS
OF THE MORTGAGE LOANS SHALL REMAIN IN FULL FORCE AND EFFECT, WITHOUT ANY
MODIFICATION THEREOF. THE MORTGAGORS SET FORTH ON SCHEDULE B HERETO ARE INTENDED
THIRD-PARTY BENEFICIARIES OF THE PROVISIONS SET FORTH IN THIS PARAGRAPH AND THE
PRECEDING PARAGRAPH. THE PROVISIONS OF THIS PARAGRAPH AND THE PRECEDING
PARAGRAPH MAY NOT BE MODIFIED WITH RESPECT TO ANY MORTGAGE LOAN WITHOUT THE
RELATED MORTGAGOR'S CONSENT.
21
F. ANY OF THE FOLLOWING DOCUMENT DEFECTS SHALL BE CONCLUSIVELY PRESUMED
MATERIALLY AND ADVERSELY TO AFFECT THE INTERESTS OF CERTIFICATEHOLDERS IN A
MORTGAGE LOAN AND BE A MATERIAL DOCUMENT DEFECT: (A) THE ABSENCE FROM THE
MORTGAGE FILE OF THE ORIGINAL SIGNED MORTGAGE NOTE, UNLESS THE MORTGAGE FILE
CONTAINS A SIGNED LOST NOTE AFFIDAVIT AND INDEMNITY THAT APPEARS TO BE REGULAR
ON ITS FACE; (B) THE ABSENCE FROM THE MORTGAGE FILE OF THE ORIGINAL SIGNED
MORTGAGE THAT APPEARS TO BE REGULAR ON ITS FACE, UNLESS THERE IS INCLUDED IN THE
MORTGAGE FILE A CERTIFIED COPY OF THE MORTGAGE BY THE LOCAL AUTHORITY WITH WHICH
THE MORTGAGE WAS RECORDED; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM
SPECIFIED IN PARAGRAPH 2.2.8. IF ANY OF THE FOREGOING MATERIAL DOCUMENT DEFECTS
IS DISCOVERED BY THE CUSTODIAN (OR THE TRUSTEE IF THERE IS NO CUSTODIAN), THE
TRUSTEE (OR AS SET FORTH IN SECTION 2.3(A) OF THE POOLING AND SERVICING
AGREEMENT, THE MASTER SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS
SECTION, INCLUDING THE GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES
HERETO AND MAKING DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT
DEFECT OR REPURCHASE OR REPLACEMENT OF THE RELATED MORTGAGE LOAN.
G. IF SELLER DISPUTES THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS
WITH RESPECT TO A MORTGAGE LOAN OR OTHERWISE REFUSES (I) TO EFFECT A CORRECTION
OR CURE OF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, (II) TO REPURCHASE
THE AFFECTED MORTGAGE LOAN FROM PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (I) THE PERIOD OF TIME
PROVIDED FOR SELLER TO CORRECT, REPURCHASE OR CURE HAS EXPIRED AND (II) THE
MORTGAGE LOAN IS THEN IN DEFAULT AND IS THEN A SPECIALLY SERVICED MORTGAGE LOAN,
THE SPECIAL SERVICER MAY, SUBJECT TO THE SERVICING STANDARD, MODIFY, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND THE PURCHASE
PRICE SHALL INCLUDE ANY WORK-OUT FEE PAID TO THE SPECIAL SERVICER UP TO THE DATE
OF REPURCHASE PLUS THE PRESENT VALUE (CALCULATED AT A DISCOUNT RATE EQUAL TO THE
APPLICABLE MORTGAGE RATE) OF THE WORK-OUT FEE THAT WOULD HAVE BEEN PAYABLE TO
THE SPECIAL SERVICER IN RESPECT OF SUCH MORTGAGE LOAN IF THE MORTGAGE LOAN
PERFORMED IN ACCORDANCE WITH ITS TERMS TO ITS MATURITY DATE, PROVIDED THAT NO
AMOUNT SHALL BE
22
PAID BY SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION FEE ALREADY
COMPRISES A PORTION OF THE PURCHASE PRICE.
H. SELLER SHALL BE NOTIFIED PROMPTLY AND IN WRITING BY (I) THE TRUSTEE OF ANY
NOTICE THAT IT RECEIVES THAT AN OPTION HOLDER INTENDS TO EXERCISE ITS OPTION TO
PURCHASE THE MORTGAGE LOAN IN ACCORDANCE WITH AND AS DESCRIBED IN SECTION 9.36
OF THE POOLING AND SERVICING AGREEMENT AND (II) THE SPECIAL SERVICER OF ANY
OFFER THAT IT RECEIVES TO PURCHASE THE APPLICABLE REO PROPERTY, EACH IN
CONNECTION WITH SUCH LIQUIDATION. UPON THE RECEIPT OF SUCH NOTICE BY SELLER,
SELLER SHALL THEN HAVE THE RIGHT TO PURCHASE THE RELATED MORTGAGE LOAN OR REO
PROPERTY, AS APPLICABLE, FROM THE TRUST AT A PURCHASE PRICE EQUAL TO, IN THE
CASE OF CLAUSE (I) OF THE IMMEDIATELY PRECEDING SENTENCE, THE OPTION PURCHASE
PRICE OR, IN THE CASE OF CLAUSE (II) OF THE IMMEDIATELY PRECEDING SENTENCE, THE
AMOUNT OF SUCH OFFER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT OR IN THE POOLING AND SERVICING AGREEMENT, THE RIGHT OF ANY OPTION
HOLDER TO PURCHASE SUCH MORTGAGE LOAN SHALL BE SUBJECT AND SUBORDINATE TO
SELLER'S RIGHT TO PURCHASE SUCH MORTGAGE LOAN AS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE. SELLER SHALL HAVE FIVE BUSINESS DAYS TO NOTIFY THE TRUSTEE
OR SPECIAL SERVICER, AS APPLICABLE, OF ITS INTENT TO SO PURCHASE THE MORTGAGE
LOAN OR RELATED REO PROPERTY FROM THE DATE THAT IT WAS NOTIFIED OF SUCH
INTENTION TO EXERCISE SUCH OPTION OR OF SUCH OFFER. THE SPECIAL SERVICER SHALL
BE OBLIGATED TO PROVIDE SELLER WITH ANY APPRAISAL OR OTHER THIRD PARTY REPORTS
RELATING TO THE MORTGAGED PROPERTY WITHIN ITS POSSESSION TO ENABLE SELLER TO
EVALUATE THE MORTGAGE LOAN OR REO PROPERTY. ANY SALE OF THE MORTGAGE LOAN, OR
FORECLOSURE UPON SUCH MORTGAGE LOAN AND SALE OF THE REO PROPERTY, TO A PERSON
OTHER THAN SELLER SHALL BE WITHOUT (I) RECOURSE OF ANY KIND (EITHER EXPRESS OR
IMPLIED) BY SUCH PERSON AGAINST SELLER AND (II) REPRESENTATION OR WARRANTY OF
ANY KIND (EITHER EXPRESS OR IMPLIED) BY SELLER TO OR FOR THE BENEFIT OF SUCH
PERSON.
I. THE FACT THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IS NOT DISCOVERED
UNTIL AFTER FORECLOSURE (BUT IN ALL INSTANCES PRIOR TO THE SALE OF THE RELATED
REO PROPERTY OR MORTGAGE LOAN) SHALL NOT PREJUDICE ANY CLAIM AGAINST SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY AT THE
PURCHASE PRICE. IF SELLER FAILS TO CORRECT OR CURE THE MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY, THEN THE PROVISIONS ABOVE
REGARDING NOTICE OF OFFERS RELATED TO SUCH REO PROPERTY AND SELLER'S RIGHT TO
PURCHASE SUCH REO PROPERTY SHALL APPLY. AFTER A
23
FINAL LIQUIDATION OF THE MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF
COMPETENT JURISDICTION ISSUES A FINAL ORDER AFTER THE EXPIRATION OF ANY
APPLICABLE APPEAL PERIOD THAT SELLER IS OR WAS OBLIGATED TO REPURCHASE THE
RELATED MORTGAGE LOAN OR REO MORTGAGE LOAN (A "FINAL JUDICIAL DETERMINATION") OR
SELLER OTHERWISE ACCEPTS LIABILITY, THEN, BUT IN NO EVENT LATER THAN THE
TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30 OF THE POOLING AND SERVICING
AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE TRUST THE DIFFERENCE BETWEEN
ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH LIQUIDATION IN ACCORDANCE WITH THE
POOLING AND SERVICING AGREEMENT (INCLUDING THOSE ARISING FROM ANY SALE TO
SELLER) AND THE PURCHASE PRICE.
J. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO PROPERTY PURSUANT TO THE
IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY LIQUIDATION FEE
(CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE SPECIAL
SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN RESPECT OF
SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET FORTH
ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE OF A
MORTGAGE LOAN BY SELLER.
K. THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
L. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE
24
TRUST WITHIN 90 DAYS OF THE RECEIPT OF NOTICE OF SUCH BREACH IN AN AMOUNT
SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST EXPENSE. THE PARTIES HERETO
ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE SELLER'S SOLE OBLIGATION WITH
RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS SENTENCE.
M. THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DISCOVERY OF ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH AND PROMPT WRITTEN
NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
N. IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER
OR ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE
THEREFOR, PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE
LOAN DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT
CONSTITUTES A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE
TRUSTEE SHALL BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT
SELLER SHALL BE VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN
EACH CASE WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH
MORTGAGE LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
XXXVIII. CLOSING.
A. THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX LLP, 000 XXXXX XXXXXX, XXX XXXX, XX 00000 AT 9:00 A.M., NEW
YORK TIME, ON THE CLOSING DATE. THE CLOSING SHALL BE SUBJECT TO EACH OF THE
FOLLOWING CONDITIONS:
1. ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE EXTENT OF THE STANDARD, IF ANY, SET FORTH
IN EACH REPRESENTATION AND WARRANTY).
2. ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED
25
BY ALL SIGNATORIES AS REQUIRED PURSUANT TO THE RESPECTIVE TERMS THEREOF.
3. SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
4. THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
5. ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
6. SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
7. THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
8. NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
9. SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
B. EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE
OBLIGATIONS HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE
MORTGAGE LOANS ON THE CLOSING DATE.
XXXIX. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
A. THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
26
B. A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS
COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED ON OR PRIOR TO THE CLOSING DATE.
C. TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
D. A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF NEW YORK
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
E. A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
F. AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
1. SELLER IS VALIDLY EXISTING UNDER NEW YORK LAW AND HAS FULL CORPORATE
POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE
27
TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS HAVE BEEN OBTAINED.
4. NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF
SELLER, (B) TO THE KNOWLEDGE OF SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY
TERM OR PROVISION OF ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE,
TO WHICH SELLER IS A PARTY OR BY WHICH IT OR ANY OF ITS ASSETS IS BOUND OR
RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON
ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH INDENTURE, MORTGAGE,
CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS AGREEMENT, OR (C)
CONFLICTS WITH OR RESULTS IN A BREACH OR VIOLATION OF ANY LAW, RULE, REGULATION,
ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF
THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR
DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE
CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF
SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY
ON ITS BUSINESS SUBSTANTIALLY AS NOW CONDUCTED.
5. TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
6. THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO
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PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
G. SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
H. A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
I. SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
J. AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
K. SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
L. AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
XL. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding dated July 29, 2005.
XLI. NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered
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or certified mail, postage prepaid and received by the addressee, (c) sent by
express courier delivery service and received by the addressee, or (d)
transmitted by telex or facsimile transmission (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to Purchaser, addressed to
Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department (or such other
address as may hereafter be furnished in writing by Purchaser), or if (ii) to
Seller, addressed to Seller at 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, XXX: A012-144,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxxx (or to such other address
as Seller may designate in writing), with a copy to Xxxxx Fargo Bank, National
Association, Xxxxxx X. Xxxxxxx, Esq., 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number: (000) 000-0000.
XLII. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty
or covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
XLIII. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement and the Pooling and Servicing Agreement.
XLIV. SURVIVAL. Each party hereto agrees that the representations, warranties
and agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
XLV. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
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XLVI. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure
to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
XLVII. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
XLVIII. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
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EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such Title Insurance Policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c) or
(d), individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate
2-1
the related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, (x) all of the material improvements on the
related
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Mortgaged Property that were considered in determining the appraised value of
the Mortgaged Property lay wholly within the boundaries and building restriction
lines of such property, except for encroachments that are insured against by the
Title Policy referred to herein or that do not materially and adversely affect
the value or marketability of such Mortgaged Property, (y) no improvements on
adjoining properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
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(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental site assessment within 18 months
prior to the Cut-Off Date, an environmental site assessment
prepared to ASTM standards, or an update of a previous
assessment, was performed with respect to each Mortgaged Property
in connection with the origination or the sale of the related
Mortgage Loan, a report of the most recent assessment with
respect to each Mortgaged Property (an "Environmental Report")
has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not
disclosed in such Environmental Report. Each Mortgage requires
the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such
Environmental Report disclosed the existence of a material and
adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition
is remediated or (iii) the related Mortgagor was required either
to provide additional security that was deemed to be sufficient
by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. Each Mortgage Loan
set forth on Schedule C to this Exhibit 2 (each, a "Schedule C
Loan") is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule C (the "Policy
Issuer") and effective as of the date thereof (the "Environmental
Insurance Policy"). Except as set forth on Schedule A to this
Exhibit 2, with respect to each Schedule C Loan, (i) to the
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) a property condition or engineering
report was prepared with respect to lead based paint ("LBP"),
asbestos containing materials ("ACM") and radon gas ("RG") at
each related Mortgaged Property and (b) if such report disclosed
the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security, or establish with the lender
a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller for the remediation of the problem
and/or (B) agreed in the Mortgage Loan documents to establish an
operations and maintenance plan after the closing of the Mortgage
Loan, (iii) on the effective date of the Environmental Insurance
Policy, Seller as originator had no knowledge of any material and
adverse environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report
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provided to the Policy Issuer and (iv) the premium of any
Environmental Insurance Policy has been paid through the maturity
of the policy's term and the term of such policy extends at least
five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
(i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or
local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws does
not have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
Sections 6901 et seq.), the Federal Water Pollution Control Act
as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor or any guarantor of any non-recourse exceptions
and environmental liability is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or
other
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similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the Mortgaged Property, and not less
than the amount necessary to avoid the operation of any co-insurance provisions
with respect to the Mortgaged Property, and the policy contains no provisions
for a deduction for depreciation; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to twelve months of operations of
the Mortgaged Property estimated as of the date of origination by the originator
of such Mortgage Loan consistent with its capital markets conduit lending
practices; (c) a flood insurance policy (if any portion of buildings or other
structures on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy not less than $1
million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
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17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease" which term shall include any related
estoppel letter or lender protection agreement between Seller and related
lessor), by the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease does not prohibit the current
use of the Mortgaged Property and does not prohibit the interest
of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser upon notice to, but without the consent of, the
lessor thereunder (or, if such consent is required for assignment
to Purchaser, it has been obtained prior to the Closing Date) and
is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the
consent of, such lessor or if such lessor's consent is required
it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease (A) requires the lessor under such Ground Lease
to give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given
under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice has been delivered to such
holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary
from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease,
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which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event
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the computation described in clauses (a)(i) and (a)(ii) of this paragraph 19
shall be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loans); or
(b) substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws and any other applicable material laws in effect at its
date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
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meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
or provides for negative amortization (except that the ARD Loan may provide for
the accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property. Neither the Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. There exists no material default, breach,
violation or event of acceleration (and no event which, with the passage of time
or the giving of notice, or both, would constitute any of the foregoing) under
the documents evidencing or securing the Mortgage Loan, in any such case to the
extent the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this representation
and warranty does not address or otherwise cover any default, breach, violation
or event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller.
28. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
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32. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged Property
and (b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
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38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or provides
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States.
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2).
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Seller's knowledge, do not, as of the date hereof, specifically
exclude Acts of Terrorism from coverage, or if such coverage is excluded, it is
covered by a separate terrorism insurance policy. With respect to each of the
Mortgage Loans, the related Mortgage Loan documents do not waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulation
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulation
Sections 1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as
a qualified mortgage, or any substantially similar provision).
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44. No Fraud in Origination. A court of competent jurisdiction will
not find, in a final non-appealable judgment, that an employee of Seller
actively participated with the Borrower in any intentional fraud in connection
with the origination of the Mortgage Loan. To the Seller's knowledge, no
Borrower is guilty of defrauding or making an intentional material
misrepresentation to Seller in connection with the origination of the Mortgage
Loan.
45. Foreclosure Property. The Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to the
Purchaser, and the Seller does not know or, to the Seller's knowledge, have
reason to know that any Mortgage Loan will default. The representations in this
paragraph 45 are being made solely for the purpose of determining whether the
Mortgaged Property, if acquired by the Trust, would qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, and may not be
relied upon or used for any other purpose. Such representations shall not be
construed as a guarantee to any degree that defaults or losses will not occur.
46. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
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SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
SCHEDULE C
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxx Fargo Bank, National Association
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 29, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this 29th day of July, 2005.
SELLER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
4-1
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT (SUNTRUST)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
SUNTRUST BANK
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 29, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................2
2. CONVEYANCE OF MORTGAGE LOANS.............................................2
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..................14
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER..........................................................18
6. CLOSING.................................................................25
7. CLOSING DOCUMENTS.......................................................26
8. COSTS...................................................................29
9. NOTICES.................................................................29
10. SEVERABILITY OF PROVISIONS..............................................30
11. FURTHER ASSURANCES......................................................30
12. SURVIVAL................................................................30
13. GOVERNING LAW...........................................................30
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................31
15. MISCELLANEOUS...........................................................31
16. ENTIRE AGREEMENT........................................................31
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................16
Agreement......................................................................1
Certificate Purchase Agreement.................................................1
Certificates...................................................................1
Closing Date...................................................................2
Collateral Information........................................................10
Crossed Mortgage Loans........................................................16
Defective Mortgage Loan.......................................................16
Final Judicial Determination..................................................18
Indemnification Agreement.....................................................12
Initial Purchaser..............................................................1
Material Breach...............................................................15
Material Document Defect......................................................15
Memorandum.....................................................................1
Mortgage File..................................................................3
Mortgage Loan Schedule.........................................................2
Mortgage Loans.................................................................1
Officer's Certificate..........................................................6
Pooling and Servicing Agreement................................................1
Private Certificates...........................................................1
Prospectus Supplement..........................................................1
Public Certificates............................................................1
Purchaser......................................................................1
Repurchased Loan..............................................................16
Seller.........................................................................1
Special Servicer...............................................................1
Trust..........................................................................1
Trustee........................................................................1
Underwriters...................................................................1
Underwriting Agreement.........................................................1
i
MORTGAGE LOAN PURCHASE AGREEMENT
(SUNTRUST LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 29,
2005, between SunTrust Bank (the "Seller"), and Xxxxxx Xxxxxxx Capital I Inc.
(the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of August 1, 2005, between Purchaser, as
depositor, Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo
Bank, National Association, as a master servicer, CWCapital Asset Management
LLC, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent,
and Xxxxx Fargo Bank, National Association, as paying agent and certificate
registrar. In exchange for the Mortgage Loans, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement. The term
"Master Servicer" as used herein shall mean Xxxxx Fargo Bank, National
Association in its capacity as a master servicer under the Pooling and Servicing
Agreement unless otherwise specified.
The Class A-1, Class A-1A, Class A-2A, Class A-2B, Class A-AB, Class
A-3, Class A-4A, Class A-4B, Class X-2, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, Banc of America Securities LLC,
Greenwich Capital Markets, Inc. and SunTrust Capital Markets, Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated July 29, 2005 (the "Underwriting Agreement"), and the
Class X-1, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class
R-III Certificates (the "Private Certificates") will be sold by Purchaser to
Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial Purchaser,
dated July 29, 2005 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 7, 2005, as supplemented by a Prospectus Supplement dated July 29,
2005 (together with the Prospectus, the "Prospectus Supplement"), and the
Initial Purchaser will offer the Private Certificates for sale in transactions
exempt from the registration requirements of the Securities Act of 1933 pursuant
to a Private Placement Memorandum dated July 29, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1
XLIX. AGREEMENT TO PURCHASE.
A. SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING
RELEASED BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE
LOAN SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS AUGUST 1, 2005.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $41,633,786. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON AUGUST 11, 2005 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
B. ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND INTEREST
IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS AGREEMENT (TO THE
EXTENT SET FORTH IN SECTION 14).
L. CONVEYANCE OF MORTGAGE LOANS.
A. EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE
CONSIDERATION REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE
CONDITIONS SPECIFIED IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER,
ASSIGN, SET OVER AND OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS
SPECIFICALLY PROVIDED HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH
THE UNDERSTANDING THAT A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED
AUGUST 1, 2005, WILL BE EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO
THE MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING
DATE. THE MORTGAGE LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR
PRIOR TO THE CLOSING DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT
AND THE POOLING AND SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND
ASSIGNMENT, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF
PURCHASER, ON OR PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN
CLAUSE 2.2.1 HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH
BUSINESS DAY AFTER THE CLOSING DATE, FIVE LIMITED
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POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE THAT NO SUCH POWER OF
ATTORNEY SHALL BE USED WITH RESPECT TO ANY MORTGAGE LOAN BY OR UNDER
AUTHORIZATION BY ANY PARTY HERETO EXCEPT TO THE EXTENT THAT THE ABSENCE OF A
DOCUMENT DESCRIBED IN THE SECOND PRECEDING SENTENCE WITH RESPECT TO SUCH
MORTGAGE LOAN REMAINS UNREMEDIED AS OF THE EARLIER OF (I) THE DATE THAT IS 180
DAYS FOLLOWING THE DELIVERY OF NOTICE OF SUCH ABSENCE TO SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
B. ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE
ARE TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT
ALL TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6,
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WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE ORIGINAL MORTGAGE NOTE
IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH A COPY OF THE MORTGAGE
NOTE ATTACHED THERETO;
2. THE ORIGINAL MORTGAGE, WITH EVIDENCE OF RECORDING THEREON, AND, IF THE
MORTGAGE WAS EXECUTED PURSUANT TO A POWER OF ATTORNEY, A CERTIFIED TRUE COPY OF
THE POWER OF ATTORNEY CERTIFIED BY THE PUBLIC RECORDER'S OFFICE, WITH EVIDENCE
OF RECORDING THEREON (IF RECORDING IS CUSTOMARY IN THE JURISDICTION IN WHICH
SUCH POWER OF ATTORNEY WAS EXECUTED), OR CERTIFIED BY A TITLE INSURANCE COMPANY
OR ESCROW COMPANY TO BE A TRUE COPY THEREOF; PROVIDED THAT IF SUCH ORIGINAL
MORTGAGE CANNOT BE DELIVERED WITH EVIDENCE OF RECORDING THEREON ON OR PRIOR TO
THE 45TH DAY FOLLOWING THE CLOSING DATE BECAUSE OF A DELAY CAUSED BY THE PUBLIC
RECORDING OFFICE WHERE SUCH ORIGINAL MORTGAGE HAS BEEN DELIVERED FOR RECORDATION
OR BECAUSE SUCH ORIGINAL MORTGAGE HAS BEEN LOST, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL MORTGAGE THAT HAS BEEN LOST AFTER
RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY RECORDING OFFICE WHERE
SUCH MORTGAGE IS RECORDED THAT SUCH COPY IS A TRUE AND COMPLETE COPY OF THE
ORIGINAL RECORDED MORTGAGE;
3. THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) IN
THE CASE OF AN ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT THAT
HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE APPROPRIATE COUNTY
RECORDING OFFICE WHERE SUCH DOCUMENT IS RECORDED THAT SUCH COPY IS A TRUE AND
COMPLETE COPY OF THE ORIGINAL RECORDED MODIFICATION, CONSOLIDATION OR EXTENSION
AGREEMENT, AND THE ORIGINALS OF ALL ASSUMPTION AGREEMENTS, IF ANY;
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4. AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I
INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6," PROVIDED,
IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH ASSIGNMENTS WILL BE
REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND INSTEAD, SELLER SHALL TAKE
ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF
THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF
RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND
SHALL DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS
SHOWN AS THE OWNER ON THE RECORD OF MERS;
5. ORIGINALS OF ALL INTERVENING ASSIGNMENTS OF MORTGAGE (EXCEPT WITH
RESPECT TO ANY MORTGAGE THAT HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEES), IF ANY, WITH EVIDENCE OF RECORDING THEREON OR, IF SUCH ORIGINAL
ASSIGNMENTS OF MORTGAGE HAVE BEEN DELIVERED TO THE APPROPRIATE RECORDER'S OFFICE
FOR RECORDATION, CERTIFIED TRUE COPIES OF SUCH ASSIGNMENTS OF MORTGAGE CERTIFIED
BY SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY SELLER OR, IF ANY
ORIGINAL INTERVENING ASSIGNMENT OF MORTGAGE HAS NOT YET BEEN RETURNED ON OR
PRIOR TO THE 45TH DAY FOLLOWING THE CLOSING DATE FROM THE APPLICABLE RECORDING
OFFICE OR HAS BEEN LOST, A TRUE AND CORRECT COPY THEREOF, TOGETHER WITH (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) IN THE CASE OF AN ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE THAT HAS BEEN LOST AFTER RECORDATION, A CERTIFICATION BY THE
APPROPRIATE COUNTY RECORDING OFFICE WHERE SUCH ASSIGNMENT IS RECORDED THAT SUCH
COPY IS A TRUE AND COMPLETE COPY OF THE ORIGINAL RECORDED INTERVENING ASSIGNMENT
OF MORTGAGE;
6. IF THE RELATED ASSIGNMENT OF LEASES IS SEPARATE FROM THE MORTGAGE, THE
ORIGINAL OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF RECORDING THEREON OR, IF
SUCH ASSIGNMENT OF LEASES HAS NOT BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY
OF SUCH ASSIGNMENT OF LEASES CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
AN ORIGINAL OF EACH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES WITH EVIDENCE OF
RECORDING THEREON AND SHOWING A COMPLETE RECORDED CHAIN OF ASSIGNMENT FROM THE
NAMED ASSIGNEE TO
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THE HOLDER OF RECORD, AND IF ANY SUCH ASSIGNMENT OF SUCH ASSIGNMENT OF LEASES
HAS NOT BEEN RETURNED FROM THE APPLICABLE PUBLIC RECORDING OFFICE, A COPY OF
SUCH ASSIGNMENT CERTIFIED BY SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX
CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6,"
WHICH ASSIGNMENT MAY BE EFFECTED IN THE RELATED ASSIGNMENT OF MORTGAGE,
PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF MERS OR ITS
DESIGNEE, NO ASSIGNMENT OF ASSIGNMENT OF LEASES IN FAVOR OF THE TRUSTEE WILL BE
REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL ACTIONS
AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE RELATED
MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING TRANSFERS
OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL DELIVER TO THE
SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON
THE RECORD OF MERS;
7. THE ORIGINAL OR A COPY OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL
SECURITY FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
8. THE ORIGINAL TITLE INSURANCE POLICY, OR IN THE EVENT SUCH ORIGINAL TITLE
INSURANCE POLICY HAS NOT BEEN ISSUED, AN ORIGINAL BINDER OR ACTUAL TITLE
COMMITMENT OR A COPY THEREOF CERTIFIED BY THE TITLE COMPANY WITH THE ORIGINAL
TITLE INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE OR A
PRELIMINARY TITLE REPORT WITH AN ORIGINAL TITLE INSURANCE POLICY TO FOLLOW
WITHIN 180 DAYS OF THE CLOSING DATE;
9. (A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS
THE OWNER ON THE RECORD OF MERS;
10. COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH
6
GROUND LEASE AND THERE IS A LIEN IN FAVOR OF THE MORTGAGEE IN SUCH LEASE;
11. COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
12. EITHER (A) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE ASSIGNED AND
DELIVERED TO THE TRUSTEE ON BEHALF OF THE TRUST WITH A COPY TO BE HELD BY THE
MASTER SERVICER, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY,
CONSTITUTING ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD
BY THE MASTER SERVICER ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE HELD BY THE
TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH DOCUMENTS
EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND SERVICING
AGREEMENT (IT BEING UNDERSTOOD THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF
SUCH LETTER OF CREDIT BELONG TO THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE
CLOSING DATE, THE BANK ISSUING THE LETTER OF CREDIT THAT THE LETTER OF CREDIT
AND THE PROCEEDS THEREOF BELONG TO THE TRUST, AND TO USE REASONABLE EFFORTS TO
OBTAIN WITHIN 30 DAYS (BUT IN ANY EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE
CLOSING DATE, AN ACKNOWLEDGEMENT THEREOF BY THE BANK (WITH A COPY OF SUCH
ACKNOWLEDGEMENT TO BE SENT TO THE TRUSTEE) AND (C) TO INDEMNIFY THE TRUST FOR
ANY LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE
FAILURE OF SELLER TO ASSIGN THE LETTER OF CREDIT HEREUNDER). IN THE CASE OF
CLAUSE (B) ABOVE, ANY LETTER OF CREDIT HELD BY THE MASTER SERVICER SHALL BE HELD
IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE MASTER SERVICER SELLS ITS
RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN, THE MASTER SERVICER HAS AGREED
TO ASSIGN THE APPLICABLE LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF
THE SPECIAL SERVICER TO SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH
CASE, AT THE EXPENSE OF THE MASTER SERVICER. THE MASTER SERVICER HAS AGREED TO
INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE INEFFECTIVENESS OF SUCH
ASSIGNMENT;
13. THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
14. COPIES OF THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH
OTHER MORTGAGED PROPERTIES SECURING MORTGAGE
7
LOANS WITH A CUT-OFF DATE PRINCIPAL BALANCE EQUAL TO OR GREATER THAN
$20,000,000;
15. ANY ENVIRONMENTAL INSURANCE POLICY; AND
16. ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Master Servicer or the Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to the Master Servicer within 30 days of the Closing Date.
Any failure to deliver any ground lease shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
C. THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED
TO IN SECTIONS 2.2.4 AND 2.2.6 MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH THE THIRD SUCCEEDING PARAGRAPH, THE ASSIGNMENTS OF MORTGAGES,
THE ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO
THE MORTGAGE LOANS NAMING THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS
ASSIGNEE. NOTWITHSTANDING THE FACT THAT SUCH ASSIGNMENTS OF MORTGAGES,
ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES)
AND ASSIGNMENTS OF UCC FINANCING STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF
THE CERTIFICATEHOLDERS AS THE ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE
THAT THE MORTGAGE LOANS SHALL FOR ALL PURPOSES BE DEEMED TO HAVE BEEN
TRANSFERRED FROM SELLER TO PURCHASER AND FROM PURCHASER TO THE TRUSTEE ON BEHALF
OF THE CERTIFICATEHOLDERS.
D. IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN,
ANY OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3,
2.2.5 OR 2.2.6, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN
DELIVERED FOR RECORDATION WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A
PHOTOCOPY THEREOF (CERTIFIED BY THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A
TRUE AND COMPLETE COPY OF THE ORIGINAL THEREOF
8
SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY PERIOD, SELLER SHALL
THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE RECORDED DOCUMENT (OR
WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE TRUSTEE MAY CONSENT TO,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG AS SELLER IS, AS
CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY, IN GOOD FAITH
ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE SUCH ORIGINAL
OR PHOTOCOPY).
E. THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE THEREON AFTER THE CUT-OFF DATE, ALL OTHER
PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER THAN SCHEDULED
PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL PAYMENTS OF
INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON THE CUT-OFF
DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR BEFORE THE
CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO SELLER.
F. WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR REAL PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4
AND 2.2.6(II) ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL
DELIVER AND PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE
TO BE SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC
OFFICE FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED
TO IN CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED
UNRECORDED OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER
SHALL PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT
ITS OWN EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY
THE TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
G. DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS
SUBCONTRACTORS THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE
DELIVERED TO THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF
THE MASTER SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER
THE CLOSING DATE.
H. THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER SHALL INCLUDE,
TO THE EXTENT REQUIRED TO BE (AND ACTUALLY) DELIVERED TO SELLER PURSUANT TO THE
APPLICABLE MORTGAGE LOAN DOCUMENTS, COPIES OF THE FOLLOWING ITEMS: THE MORTGAGE
NOTE, ANY MORTGAGE, THE ASSIGNMENT OF LEASES AND THE ASSIGNMENT OF
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MORTGAGE, ANY GUARANTY/INDEMNITY AGREEMENT, ANY LOAN AGREEMENT, THE INSURANCE
POLICIES OR CERTIFICATES, AS APPLICABLE, THE PROPERTY INSPECTION REPORTS, ANY
FINANCIAL STATEMENTS ON THE PROPERTY, ANY ESCROW ANALYSIS, THE TAX BILLS, THE
APPRAISAL, THE ENVIRONMENTAL REPORT, THE ENGINEERING REPORT, THE ASSET SUMMARY,
FINANCIAL INFORMATION ON THE BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF
CREDIT, ANY INTERCREDITOR AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES.
I. UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS OF THE TYPE SET FORTH IN SECTION 2.8
ABOVE WITH RESPECT TO THE RELATED MORTGAGE LOAN PREPARED BY OR THAT COME INTO
THE POSSESSION OF SELLER SHALL IMMEDIATELY VEST IN PURCHASER AND ITS ASSIGNS,
AND SHALL BE DELIVERED PROMPTLY BY SELLER TO OR ON BEHALF OF EITHER THE TRUSTEE
OR THE MASTER SERVICER AS SET FORTH HEREIN. SELLER'S AND PURCHASER'S RECORDS
SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER TO PURCHASER AND
ITS ASSIGNS AS A SALE.
J. IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, OR IF FOR ANY OTHER
REASON THIS AGREEMENT IS HELD OR DEEMED TO CREATE A SECURITY INTEREST IN THE
MORTGAGE LOANS OR ANY RELATED PROPERTY, THEN:
1. THIS AGREEMENT SHALL BE DEEMED TO BE A SECURITY AGREEMENT; AND
2. THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
A. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT AND INVESTMENT PROPERTY CONSISTING OF, ARISING
FROM OR RELATING TO
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ANY OF THE FOLLOWING PROPERTY: THE MORTGAGE LOANS IDENTIFIED ON THE
MORTGAGE LOAN SCHEDULE, INCLUDING THE RELATED MORTGAGE NOTES, MORTGAGES,
SECURITY AGREEMENTS, AND TITLE, HAZARD AND OTHER INSURANCE POLICIES, ALL
DISTRIBUTIONS WITH RESPECT THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL
SUBSTITUTE OR REPLACEMENT MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT
THERETO, AND THE MORTGAGE FILES;
B. ALL ACCOUNTS, GENERAL INTANGIBLES, CHATTEL PAPER, INSTRUMENTS,
DOCUMENTS, MONEY, DEPOSIT ACCOUNTS, CERTIFICATES OF DEPOSIT, GOODS, LETTERS
OF CREDIT, ADVICES OF CREDIT, INVESTMENT PROPERTY AND OTHER RIGHTS ARISING
FROM OR BY VIRTUE OF THE DISPOSITION OF, OR COLLECTIONS WITH RESPECT TO, OR
INSURANCE PROCEEDS PAYABLE WITH RESPECT TO, OR CLAIMS AGAINST OTHER PERSONS
WITH RESPECT TO, ALL OR ANY PART OF THE COLLATERAL DESCRIBED IN CLAUSE (A)
ABOVE (INCLUDING ANY ACCRUED DISCOUNT REALIZED ON LIQUIDATION OF ANY
INVESTMENT PURCHASED AT A DISCOUNT); AND
C. ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
K. THE POSSESSION BY PURCHASER OR ITS DESIGNEE OF THE MORTGAGE NOTES, THE
MORTGAGES, AND SUCH OTHER GOODS, LETTERS OF CREDIT, ADVICES OF CREDIT,
INSTRUMENTS, MONEY, DOCUMENTS, CHATTEL PAPER OR CERTIFICATED SECURITIES SHALL BE
DEEMED TO BE POSSESSION BY THE SECURED PARTY OR POSSESSION BY A PURCHASER FOR
PURPOSES OF PERFECTING THE SECURITY INTEREST PURSUANT TO THE UNIFORM COMMERCIAL
CODE (INCLUDING, WITHOUT LIMITATION, SECTIONS 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
L. NOTIFICATIONS TO PERSONS HOLDING SUCH PROPERTY, AND ACKNOWLEDGMENTS,
RECEIPTS, OR CONFIRMATIONS FROM PERSONS HOLDING SUCH PROPERTY, SHALL BE DEEMED
TO BE NOTIFICATIONS TO, OR ACKNOWLEDGMENTS, RECEIPTS OR CONFIRMATIONS FROM,
SECURITIES INTERMEDIARIES, BAILEES OR AGENTS OF, OR PERSONS HOLDING FOR,
PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
M. SELLER SHALL, TO THE EXTENT CONSISTENT WITH THIS AGREEMENT AND UPON REQUEST
BY OR ON BEHALF OF PURCHASER, TAKE SUCH REASONABLE ACTIONS AS MAY BE NECESSARY
TO ENSURE THAT, IF THIS AGREEMENT WERE DEEMED TO CREATE A SECURITY INTEREST IN
THE PROPERTY DESCRIBED ABOVE, SUCH SECURITY INTEREST WOULD BE DEEMED TO BE A
PERFECTED SECURITY INTEREST OF FIRST PRIORITY UNDER APPLICABLE LAW AND WILL BE
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MAINTAINED AS SUCH THROUGHOUT THE TERM OF THE AGREEMENT. IN SUCH CASE, SELLER
SHALL FILE ALL FILINGS NECESSARY TO MAINTAIN THE EFFECTIVENESS OF ANY ORIGINAL
FILINGS NECESSARY UNDER THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
JURISDICTION TO PERFECT SUCH SECURITY INTEREST IN SUCH PROPERTY. IN CONNECTION
HEREWITH, PURCHASER SHALL HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY
AND CREDITOR UNDER THE UNIFORM COMMERCIAL CODE AS IN FORCE IN THE RELEVANT
JURISDICTION.
N. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE LOAN AS TO
WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1) REQUIRED TO BE
DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER PURSUANT TO THIS
SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR IS NOT PROPERLY
EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE OF THE RELATED
MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A WAIVER OF SUCH
OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND ASSIGNS' RIGHTS IN
RESPECT THEREOF PURSUANT TO SECTION 5.
LI. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW. A. SELLER SHALL (I)
DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE ACCEPTABLE TO
PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS AS MAY BE
REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR FILES
(COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS PROPOSED
TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE
LOANS PURSUANT TO SECTION 5 HEREOF.
B. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
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CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER WITH ANY ADDITIONAL INFORMATION IDENTIFIED BY THE
MASTER SERVICER AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT
THAT SUCH INFORMATION IS AVAILABLE.
C. PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE
DESIGNEES OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF
THE IDENTITY OF SUCH DESIGNEE OR AGENT.
D. PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE SUCH INFORMATION. IF
PURCHASER IS REQUIRED TO DISCLOSE IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE PRECEDING
SENTENCE, PURCHASER SHALL PROVIDE TO SELLER A COPY OF THE PROPOSED FORM OF SUCH
DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE AND SELLER SHALL PROMPTLY, AND IN ANY
EVENT WITHIN TWO BUSINESS DAYS, NOTIFY PURCHASER OF ANY INACCURACIES THEREIN, IN
WHICH CASE PURCHASER SHALL MODIFY SUCH FORM IN A MANNER THAT CORRECTS SUCH
INACCURACIES. IF PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE SECOND PRECEDING
SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
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COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
LII. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
A. TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN (SUBJECT
TO THE LAST PARAGRAPH OF THIS SECTION 4.1) AS OF THE DATE HEREOF (OR AS OF SUCH
OTHER DATE SPECIFICALLY SET FORTH IN THE PARTICULAR REPRESENTATION AND WARRANTY)
EACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT
AS OTHERWISE SET FORTH ON SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER
REPRESENTS AND WARRANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
1. SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A BANKING
CORPORATION IN GOOD STANDING UNDER THE LAWS OF THE STATE OF GEORGIA. SELLER HAS
THE REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND
TO TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE
POWER AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS
CONTEMPLATED BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS
AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT
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SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF THE PROVISIONS OF
THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER
APPLICABLE SECURITIES LAWS.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
4. NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SUBSECTION 4.1.3, ANY LAW, RULE, REGULATION, ORDER, JUDGMENT,
WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES
CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR
CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER
OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
15
5. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
6. ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
7. TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED JULY 29, 2005, BETWEEN SELLER, PURCHASER, THE
UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
RELATING TO THE MORTGAGE LOANS DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS
SUBPARAGRAPH 4.1.7 SHALL RUN EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO
OTHER PARTY.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
B. TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS
AND WARRANTS TO SELLER AS OF THE DATE HEREOF:
1. PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
2. PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS
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AGREEMENT. PURCHASER HAS DULY AND VALIDLY AUTHORIZED THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND HAS DULY AND VALIDLY EXECUTED AND DELIVERED
THIS AGREEMENT. THIS AGREEMENT, ASSUMING DUE AUTHORIZATION, EXECUTION AND
DELIVERY BY SELLER, CONSTITUTES THE VALID AND BINDING OBLIGATION OF PURCHASER,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER SUCH
ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
4. NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER,
OR RESULT IN A BREACH OF, ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR
INDENTURE TO WHICH PURCHASER IS A PARTY OR THAT MAY BE APPLICABLE TO PURCHASER
OR ITS ASSETS.
5. PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
6. THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL
17
CONDITION OF PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF
PURCHASER TO PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
7. PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
LIII. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
A. IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE
TRUSTEE ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY
OF PURCHASER'S ASSIGNMENT OF ITS RIGHTS HEREUNDER TO THE TRUSTEE, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO (EACH AS OF THE
DATE HEREOF UNLESS OTHERWISE SPECIFIED).
B. IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE
DELIVERED TO THE TRUSTEE PURSUANT TO SECTION 2 IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE SUCH
DEFECT OR BREACH, EITHER (I) MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF
THE HOLDERS OF THE CERTIFICATES IN THE RELATED MORTGAGE LOAN, OR (II) BOTH (A)
THE DOCUMENT DEFECT OR BREACH MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE
MORTGAGE LOAN AND (B) THE MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR
REHABILITATED MORTGAGE LOAN (SUCH A DOCUMENT DEFECT DESCRIBED IN THE PRECEDING
CLAUSE (I) OR (II), A "MATERIAL DOCUMENT DEFECT" AND SUCH A BREACH DESCRIBED IN
THE PRECEDING CLAUSE (I) OR (II) A "MATERIAL BREACH"), THE PARTY DISCOVERING
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH SHALL PROMPTLY NOTIFY, IN
WRITING, THE OTHER PARTIES; PROVIDED THAT ANY BREACH OF
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THE REPRESENTATION AND WARRANTY CONTAINED IN PARAGRAPH (41) OF SUCH EXHIBIT 2
SHALL CONSTITUTE A MATERIAL BREACH ONLY IF SUCH PREPAYMENT PREMIUM OR YIELD
MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY" FOR COMMERCIAL MORTGAGE LOANS AS
EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO SUCH EFFECT OR (II) A
DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH PROVISION IS NOT
CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) UPON BECOMING
AWARE OF ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, THE MASTER
SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT LATER
THAN 90 DAYS FROM SELLER'S RECEIPT OF THE NOTICE OF SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH, CURE SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL
BREACH, AS THE CASE MAY BE, IN ALL MATERIAL RESPECTS; PROVIDED, HOWEVER, THAT IF
SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, CANNOT BE
CORRECTED OR CURED IN ALL MATERIAL RESPECTS WITHIN SUCH 90 DAY PERIOD, AND SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH WOULD NOT CAUSE THE MORTGAGE LOAN TO
BE OTHER THAN A "QUALIFIED MORTGAGE"(AS DEFINED IN THE CODE) BUT SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL
DOCUMENT DEFECT, (X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE
LOAN AND A SERVICING TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY
DEFAULT OR AS DESCRIBED IN CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF
"SERVICING TRANSFER EVENT" IN THE POOLING AND SERVICING AGREEMENT AND (Y) THE
MATERIAL DOCUMENT DEFECT WAS IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER
BY THE TRUSTEE PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT
NOT LESS THAN 90 DAYS PRIOR TO THE DELIVERY OF THE NOTICE OF SUCH MATERIAL
DOCUMENT DEFECT. THE PARTIES ACKNOWLEDGE THAT NEITHER DELIVERY OF A
CERTIFICATION OR SCHEDULE OF EXCEPTIONS TO SELLER PURSUANT TO SECTION 2.2 OF THE
POOLING AND SERVICING AGREEMENT OR OTHERWISE NOR POSSESSION OF SUCH
CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN AND OF ITSELF, CONSTITUTE DELIVERY
OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR KNOWLEDGE OR AWARENESS BY SELLER OF
ANY MATERIAL DOCUMENT DEFECT LISTED THEREIN.
C. SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH CANNOT BE CORRECTED OR CURED WITHIN THE ABOVE CURE PERIODS,
SELLER SHALL, ON OR BEFORE THE TERMINATION OF SUCH CURE PERIODS, EITHER (I)
REPURCHASE THE AFFECTED MORTGAGE LOAN OR REO MORTGAGE LOAN FROM PURCHASER OR ITS
ASSIGNEE AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT, OR (II) IF WITHIN THE THREE-MONTH PERIOD COMMENCING ON THE CLOSING
DATE (OR WITHIN THE TWO-YEAR PERIOD COMMENCING ON THE CLOSING DATE IF THE
RELATED MORTGAGE LOAN IS A
19
"DEFECTIVE OBLIGATION" WITHIN THE MEANING OF SECTION 860G(A)(4)(B)(II) OF THE
CODE AND TREASURY REGULATION SECTION 1.860G-2(F)), AT ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN. IF SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH WOULD CAUSE THE MORTGAGE LOAN TO BE OTHER THAN A
"QUALIFIED MORTGAGE" (AS DEFINED IN THE CODE), THEN NOTWITHSTANDING THE PREVIOUS
SENTENCE OR THE PREVIOUS PARAGRAPH, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
D. IF (X) A MORTGAGE LOAN IS TO BE REPURCHASED OR REPLACED AS CONTEMPLATED ABOVE
(A "DEFECTIVE MORTGAGE LOAN"), (Y) SUCH DEFECTIVE MORTGAGE LOAN IS
CROSS-COLLATERALIZED AND CROSS-DEFAULTED WITH ONE OR MORE OTHER MORTGAGE LOANS
("CROSSED MORTGAGE LOANS") AND (Z) THE APPLICABLE DOCUMENT DEFECT OR BREACH DOES
NOT CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY
BE, AS TO SUCH CROSSED MORTGAGE LOANS (WITHOUT REGARD TO THIS PARAGRAPH), THEN
THE APPLICABLE DOCUMENT DEFECT OR BREACH (AS THE CASE MAY BE) SHALL BE DEEMED TO
CONSTITUTE A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, AS THE CASE MAY BE, AS
TO EACH SUCH CROSSED MORTGAGE LOAN FOR PURPOSES OF THE ABOVE PROVISIONS, AND
SELLER SHALL BE OBLIGATED TO REPURCHASE OR REPLACE EACH SUCH CROSSED MORTGAGE
LOAN IN ACCORDANCE WITH THE PROVISIONS ABOVE, UNLESS, IN THE CASE OF SUCH BREACH
OR DOCUMENT DEFECT, (A) SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE
TRUSTEE AT THE EXPENSE OF SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE
TRUSTEE, IT WOULD BE USUAL AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO
OBTAIN A NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS
WOULD BE SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE
LOANS AS TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED
WITHOUT REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (EXCLUDING THE AFFECTED
LOAN(S)) FOR THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR
REPLACEMENT IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH OTHER MORTGAGE LOANS (INCLUDING THE AFFECTED
LOANS(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT AND (B) THE
DEBT SERVICE COVERAGE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOAN(S)) FOR THE FOUR PRECEDING CALENDAR QUARTERS PRECEDING THE
REPURCHASE OR REPLACEMENT, AND (II) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED
MORTGAGE LOANS (EXCLUDING THE AFFECTED LOAN(S)) IS NOT GREATER THAN THE GREATER
OF (A) THE LOAN-TO-VALUE RATIO, EXPRESSED AS A WHOLE NUMBER (TAKEN TO
20
ONE DECIMAL PLACE), FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED
LOAN(S)) SET FORTH IN APPENDIX A TO THE FINAL PROSPECTUS SUPPLEMENT PLUS 10% AND
(B) THE LOAN-TO-VALUE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE
AFFECTED LOANS(S)), AT THE TIME OF REPURCHASE OR REPLACEMENT. THE DETERMINATION
OF THE MASTER SERVICER AS TO WHETHER THE CONDITIONS SET FORTH ABOVE HAVE BEEN
SATISFIED SHALL BE CONCLUSIVE AND BINDING IN THE ABSENCE OF MANIFEST ERROR. THE
MASTER SERVICER WILL BE ENTITLED TO CAUSE TO BE DELIVERED, OR DIRECT SELLER TO
(IN WHICH CASE SELLER SHALL) CAUSE TO BE DELIVERED TO THE MASTER SERVICER, AN
APPRAISAL OF ANY OR ALL OF THE RELATED MORTGAGED PROPERTIES FOR PURPOSES OF
DETERMINING WHETHER THE CONDITION SET FORTH IN CLAUSE (II) ABOVE HAS BEEN
SATISFIED, IN EACH CASE AT THE EXPENSE OF SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
E. WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER) CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND
PURCHASER HEREBY AGREE TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE
OTHER'S PRIMARY COLLATERAL BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY
COLLATERAL SECURING THEIR RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO
THE TRUSTEE, THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOANS STILL HELD BY
THE TRUSTEE, SO LONG AS SUCH EXERCISE DOES NOT IMPAIR THE ABILITY OF THE OTHER
PARTY TO EXERCISE ITS REMEDIES AGAINST ITS PRIMARY COLLATERAL. IF THE EXERCISE
OF REMEDIES BY ONE PARTY WOULD IMPAIR THE ABILITY OF THE OTHER PARTY TO EXERCISE
ITS REMEDIES WITH RESPECT TO THE PRIMARY COLLATERAL SECURING THE MORTGAGE LOAN
OR MORTGAGE LOANS HELD BY SUCH PARTY, THEN BOTH PARTIES SHALL FORBEAR FROM
EXERCISING SUCH REMEDIES UNTIL THE LOAN DOCUMENTS EVIDENCING AND SECURING THE
RELEVANT MORTGAGE LOANS CAN BE MODIFIED IN A MANNER THAT COMPLIES WITH THE
POOLING AND SERVICING AGREEMENT TO REMOVE THE THREAT OF IMPAIRMENT AS A RESULT
OF THE EXERCISE OF REMEDIES. ANY RESERVE OR OTHER CASH COLLATERAL OR LETTERS OF
CREDIT SECURING THE CROSSED MORTGAGE LOANS SHALL BE ALLOCATED BETWEEN SUCH
MORTGAGE LOANS IN ACCORDANCE WITH THE MORTGAGE LOAN DOCUMENTS, OR OTHERWISE ON A
PRO RATA BASIS BASED UPON THEIR OUTSTANDING PRINCIPAL BALANCES. ALL OTHER TERMS
OF THE MORTGAGE LOANS SHALL REMAIN IN FULL FORCE AND EFFECT, WITHOUT ANY
MODIFICATION THEREOF. THE MORTGAGORS SET FORTH ON SCHEDULE B HERETO ARE INTENDED
THIRD-PARTY BENEFICIARIES OF THE PROVISIONS SET FORTH IN THIS PARAGRAPH AND THE
PRECEDING PARAGRAPH. THE PROVISIONS OF THIS PARAGRAPH AND THE PRECEDING
PARAGRAPH MAY NOT BE MODIFIED WITH RESPECT TO ANY MORTGAGE LOAN WITHOUT THE
RELATED MORTGAGOR'S CONSENT.
21
F. ANY OF THE FOLLOWING DOCUMENT DEFECTS SHALL BE CONCLUSIVELY PRESUMED
MATERIALLY AND ADVERSELY TO AFFECT THE INTERESTS OF CERTIFICATEHOLDERS IN A
MORTGAGE LOAN AND BE A MATERIAL DOCUMENT DEFECT: (A) THE ABSENCE FROM THE
MORTGAGE FILE OF THE ORIGINAL SIGNED MORTGAGE NOTE, UNLESS THE MORTGAGE FILE
CONTAINS A SIGNED LOST NOTE AFFIDAVIT AND INDEMNITY THAT APPEARS TO BE REGULAR
ON ITS FACE; (B) THE ABSENCE FROM THE MORTGAGE FILE OF THE ORIGINAL SIGNED
MORTGAGE THAT APPEARS TO BE REGULAR ON ITS FACE, UNLESS THERE IS INCLUDED IN THE
MORTGAGE FILE A CERTIFIED COPY OF THE MORTGAGE BY THE LOCAL AUTHORITY WITH WHICH
THE MORTGAGE WAS RECORDED; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM
SPECIFIED IN PARAGRAPH 2.2.8. IF ANY OF THE FOREGOING MATERIAL DOCUMENT DEFECTS
IS DISCOVERED BY THE CUSTODIAN (OR THE TRUSTEE IF THERE IS NO CUSTODIAN), THE
TRUSTEE (OR AS SET FORTH IN SECTION 2.3(A) OF THE POOLING AND SERVICING
AGREEMENT, THE MASTER SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS
SECTION, INCLUDING THE GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES
HERETO AND MAKING DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT
DEFECT OR REPURCHASE OR REPLACEMENT OF THE RELATED MORTGAGE LOAN.
G. IF SELLER DISPUTES THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS
WITH RESPECT TO A MORTGAGE LOAN OR OTHERWISE REFUSES (I) TO EFFECT A CORRECTION
OR CURE OF SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH, (II) TO REPURCHASE
THE AFFECTED MORTGAGE LOAN FROM PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (I) THE PERIOD OF TIME
PROVIDED FOR SELLER TO CORRECT, REPURCHASE OR CURE HAS EXPIRED AND (II) THE
MORTGAGE LOAN IS THEN IN DEFAULT AND IS THEN A SPECIALLY SERVICED MORTGAGE LOAN,
THE SPECIAL SERVICER MAY, SUBJECT TO THE SERVICING STANDARD, MODIFY, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND THE PURCHASE
PRICE SHALL INCLUDE ANY WORK-OUT FEE PAID TO THE SPECIAL SERVICER UP TO THE DATE
OF REPURCHASE PLUS THE PRESENT VALUE (CALCULATED AT A DISCOUNT RATE EQUAL TO THE
APPLICABLE MORTGAGE RATE) OF THE WORK-OUT FEE THAT WOULD HAVE BEEN PAYABLE TO
THE SPECIAL SERVICER IN RESPECT OF SUCH MORTGAGE LOAN IF THE MORTGAGE LOAN
PERFORMED IN ACCORDANCE WITH ITS TERMS TO ITS MATURITY DATE, PROVIDED THAT NO
AMOUNT SHALL BE
22
PAID BY SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION FEE ALREADY
COMPRISES A PORTION OF THE PURCHASE PRICE.
H. SELLER SHALL BE NOTIFIED PROMPTLY AND IN WRITING BY (I) THE TRUSTEE OF ANY
NOTICE THAT IT RECEIVES THAT AN OPTION HOLDER INTENDS TO EXERCISE ITS OPTION TO
PURCHASE THE MORTGAGE LOAN IN ACCORDANCE WITH AND AS DESCRIBED IN SECTION 9.36
OF THE POOLING AND SERVICING AGREEMENT AND (II) THE SPECIAL SERVICER OF ANY
OFFER THAT IT RECEIVES TO PURCHASE THE APPLICABLE REO PROPERTY, EACH IN
CONNECTION WITH SUCH LIQUIDATION. UPON THE RECEIPT OF SUCH NOTICE BY SELLER,
SELLER SHALL THEN HAVE THE RIGHT TO PURCHASE THE RELATED MORTGAGE LOAN OR REO
PROPERTY, AS APPLICABLE, FROM THE TRUST AT A PURCHASE PRICE EQUAL TO, IN THE
CASE OF CLAUSE (I) OF THE IMMEDIATELY PRECEDING SENTENCE, THE OPTION PURCHASE
PRICE OR, IN THE CASE OF CLAUSE (II) OF THE IMMEDIATELY PRECEDING SENTENCE, THE
AMOUNT OF SUCH OFFER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT OR IN THE POOLING AND SERVICING AGREEMENT, THE RIGHT OF ANY OPTION
HOLDER TO PURCHASE SUCH MORTGAGE LOAN SHALL BE SUBJECT AND SUBORDINATE TO
SELLER'S RIGHT TO PURCHASE SUCH MORTGAGE LOAN AS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE. SELLER SHALL HAVE FIVE BUSINESS DAYS TO NOTIFY THE TRUSTEE
OR SPECIAL SERVICER, AS APPLICABLE, OF ITS INTENT TO SO PURCHASE THE MORTGAGE
LOAN OR RELATED REO PROPERTY FROM THE DATE THAT IT WAS NOTIFIED OF SUCH
INTENTION TO EXERCISE SUCH OPTION OR OF SUCH OFFER. THE SPECIAL SERVICER SHALL
BE OBLIGATED TO PROVIDE SELLER WITH ANY APPRAISAL OR OTHER THIRD PARTY REPORTS
RELATING TO THE MORTGAGED PROPERTY WITHIN ITS POSSESSION TO ENABLE SELLER TO
EVALUATE THE MORTGAGE LOAN OR REO PROPERTY. ANY SALE OF THE MORTGAGE LOAN, OR
FORECLOSURE UPON SUCH MORTGAGE LOAN AND SALE OF THE REO PROPERTY, TO A PERSON
OTHER THAN SELLER SHALL BE WITHOUT (I) RECOURSE OF ANY KIND (EITHER EXPRESS OR
IMPLIED) BY SUCH PERSON AGAINST SELLER AND (II) REPRESENTATION OR WARRANTY OF
ANY KIND (EITHER EXPRESS OR IMPLIED) BY SELLER TO OR FOR THE BENEFIT OF SUCH
PERSON.
I. THE FACT THAT A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IS NOT DISCOVERED
UNTIL AFTER FORECLOSURE (BUT IN ALL INSTANCES PRIOR TO THE SALE OF THE RELATED
REO PROPERTY OR MORTGAGE LOAN) SHALL NOT PREJUDICE ANY CLAIM AGAINST SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY AT THE
PURCHASE PRICE. IF SELLER FAILS TO CORRECT OR CURE THE MATERIAL DOCUMENT DEFECT
OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY, THEN THE PROVISIONS ABOVE
REGARDING NOTICE OF OFFERS RELATED TO SUCH REO PROPERTY AND SELLER'S RIGHT TO
PURCHASE SUCH REO PROPERTY SHALL APPLY. AFTER A
23
FINAL LIQUIDATION OF THE MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF
COMPETENT JURISDICTION ISSUES A FINAL ORDER AFTER THE EXPIRATION OF ANY
APPLICABLE APPEAL PERIOD THAT SELLER IS OR WAS OBLIGATED TO REPURCHASE THE
RELATED MORTGAGE LOAN OR REO MORTGAGE LOAN (A "FINAL JUDICIAL DETERMINATION") OR
SELLER OTHERWISE ACCEPTS LIABILITY, THEN, BUT IN NO EVENT LATER THAN THE
TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30 OF THE POOLING AND SERVICING
AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE TRUST THE DIFFERENCE BETWEEN
ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH LIQUIDATION IN ACCORDANCE WITH THE
POOLING AND SERVICING AGREEMENT (INCLUDING THOSE ARISING FROM ANY SALE TO
SELLER) AND THE PURCHASE PRICE.
J. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO PROPERTY PURSUANT TO THE
IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY LIQUIDATION FEE
(CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE SPECIAL
SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN RESPECT OF
SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET FORTH
ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE OF A
MORTGAGE LOAN BY SELLER.
K. THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
L. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE
24
TRUST WITHIN 90 DAYS OF THE RECEIPT OF NOTICE OF SUCH BREACH IN AN AMOUNT
SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST EXPENSE. THE PARTIES HERETO
ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE SELLER'S SOLE OBLIGATION WITH
RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS SENTENCE.
M. THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DISCOVERY OF ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH AND PROMPT WRITTEN
NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
N. IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER
OR ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE
THEREFOR, PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE
LOAN DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT
CONSTITUTES A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE
TRUSTEE SHALL BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT
SELLER SHALL BE VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN
EACH CASE WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH
MORTGAGE LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
LIV. CLOSING.
A. THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX LLP, 000 XXXXX XXXXXX, XXX XXXX, XX 00000 AT 9:00 A.M., NEW
YORK TIME, ON THE CLOSING DATE. THE CLOSING SHALL BE SUBJECT TO EACH OF THE
FOLLOWING CONDITIONS:
1. ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE EXTENT OF THE STANDARD, IF ANY, SET FORTH
IN EACH REPRESENTATION AND WARRANTY).
2. ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED
25
BY ALL SIGNATORIES AS REQUIRED PURSUANT TO THE RESPECTIVE TERMS THEREOF.
3. SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
4. THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
5. ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
6. SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
7. THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
8. NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
9. SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
B. EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE
OBLIGATIONS HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE
MORTGAGE LOANS ON THE CLOSING DATE.
LV. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
A. THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
26
B. A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS
COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED ON OR PRIOR TO THE CLOSING DATE.
C. TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
D. A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF NEW YORK
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
E. A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
F. AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
1. SELLER IS VALIDLY EXISTING UNDER NEW YORK LAW AND HAS FULL CORPORATE
POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
2. THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
3. NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE
27
TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS HAVE BEEN OBTAINED.
4. NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF
SELLER, (B) TO THE KNOWLEDGE OF SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY
TERM OR PROVISION OF ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE,
TO WHICH SELLER IS A PARTY OR BY WHICH IT OR ANY OF ITS ASSETS IS BOUND OR
RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON
ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH INDENTURE, MORTGAGE,
CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS AGREEMENT, OR (C)
CONFLICTS WITH OR RESULTS IN A BREACH OR VIOLATION OF ANY LAW, RULE, REGULATION,
ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF
THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR
DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE
CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF
SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY
ON ITS BUSINESS SUBSTANTIALLY AS NOW CONDUCTED.
5. TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
6. THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO
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PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
G. SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
H. A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
I. SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
J. AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
K. SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
L. AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
LVI. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding dated July 29, 2005.
LVII. NOTICES. All communications provided for or permitted hereunder shall be
in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered
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or certified mail, postage prepaid and received by the addressee, (c) sent by
express courier delivery service and received by the addressee, or (d)
transmitted by telex or facsimile transmission (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to Purchaser, addressed to
Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department (or such other
address as may hereafter be furnished in writing by Purchaser), or if (ii) to
Seller, addressed to Seller at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX
00000, Attention: Xxxxx Xxxxxxxx, Managing Director (or to such other address as
Seller may designate in writing).
LVIII. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty
or covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
LIX. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
LX. SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
LXI. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
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LXII. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure
to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
LXIII. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
LXIV. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
SUNTRUST BANK
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
32
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such Title Insurance Policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c) or
(d), individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate
2-1
the related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, (x) all of the material improvements on the
related
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Mortgaged Property that were considered in determining the appraised value of
the Mortgaged Property lay wholly within the boundaries and building restriction
lines of such property, except for encroachments that are insured against by the
Title Policy referred to herein or that do not materially and adversely affect
the value or marketability of such Mortgaged Property, (y) no improvements on
adjoining properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
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(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental site assessment within 18 months
prior to the Cut-Off Date, an environmental site assessment
prepared to ASTM standards, or an update of a previous
assessment, was performed with respect to each Mortgaged Property
in connection with the origination or the sale of the related
Mortgage Loan, a report of the most recent assessment with
respect to each Mortgaged Property (an "Environmental Report")
has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not
disclosed in such Environmental Report. Each Mortgage requires
the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such
Environmental Report disclosed the existence of a material and
adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition
is remediated or (iii) the related Mortgagor was required either
to provide additional security that was deemed to be sufficient
by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. Each Mortgage Loan
set forth on Schedule C to this Exhibit 2 (each, a "Schedule C
Loan") is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule C (the "Policy
Issuer") and effective as of the date thereof (the "Environmental
Insurance Policy"). Except as set forth on Schedule A to this
Exhibit 2, with respect to each Schedule C Loan, (i) to the
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) a property condition or engineering
report was prepared with respect to lead based paint ("LBP"),
asbestos containing materials ("ACM") and radon gas ("RG") at
each related Mortgaged Property and (b) if such report disclosed
the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security, or establish with the lender
a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller for the remediation of the problem
and/or (B) agreed in the Mortgage Loan documents to establish an
operations and maintenance plan after the closing of the Mortgage
Loan, (iii) on the effective date of the Environmental Insurance
Policy, Seller as originator had no knowledge of any material and
adverse environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report
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provided to the Policy Issuer and (iv) the premium of any
Environmental Insurance Policy has been paid through the maturity
of the policy's term and the term of such policy extends at least
five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
(i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or
local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws does
not have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
Sections 6901 et seq.), the Federal Water Pollution Control Act
as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor or any guarantor of any non-recourse exceptions
and environmental liability is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or
other
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similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the Mortgaged Property, and not less
than the amount necessary to avoid the operation of any co-insurance provisions
with respect to the Mortgaged Property, and the policy contains no provisions
for a deduction for depreciation; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to twelve months of operations of
the Mortgaged Property estimated as of the date of origination by the originator
of such Mortgage Loan consistent with its capital markets conduit lending
practices; (c) a flood insurance policy (if any portion of buildings or other
structures on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy not less than $1
million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
2-6
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease" which term shall include any related
estoppel letter or lender protection agreement between Seller and related
lessor), by the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease does not prohibit the current
use of the Mortgaged Property and does not prohibit the interest
of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser upon notice to, but without the consent of, the
lessor thereunder (or, if such consent is required for assignment
to Purchaser, it has been obtained prior to the Closing Date) and
is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the
consent of, such lessor or if such lessor's consent is required
it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease (A) requires the lessor under such Ground Lease
to give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given
under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice has been delivered to such
holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary
from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease,
2-7
which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event
2-8
the computation described in clauses (a)(i) and (a)(ii) of this paragraph 19
shall be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loans); or
(b) substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws and any other applicable material laws in effect at its
date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
2-9
meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
or provides for negative amortization (except that the ARD Loan may provide for
the accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property. Neither the Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. There exists no material default, breach,
violation or event of acceleration (and no event which, with the passage of time
or the giving of notice, or both, would constitute any of the foregoing) under
the documents evidencing or securing the Mortgage Loan, in any such case to the
extent the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this representation
and warranty does not address or otherwise cover any default, breach, violation
or event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller.
28. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
2-10
32. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged Property
and (b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
2-11
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or provides
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States.
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2).
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Seller's knowledge, do not, as of the date hereof, specifically
exclude Acts of Terrorism from coverage, or if such coverage is excluded, it is
covered by a separate terrorism insurance policy. With respect to each of the
Mortgage Loans, the related Mortgage Loan documents do not waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulation
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulation
Sections 1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as
a qualified mortgage, or any substantially similar provision).
2-12
44. No Fraud in Origination. A court of competent jurisdiction will
not find, in a final non-appealable judgment, that an employee of Seller
actively participated with the Borrower in any intentional fraud in connection
with the origination of the Mortgage Loan. To the Seller's knowledge, no
Borrower is guilty of defrauding or making an intentional material
misrepresentation to Seller in connection with the origination of the Mortgage
Loan.
45. Foreclosure Property. The Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to the
Purchaser, and the Seller does not know or, to the Seller's knowledge, have
reason to know that any Mortgage Loan will default. The representations in this
paragraph 45 are being made solely for the purpose of determining whether the
Mortgaged Property, if acquired by the Trust, would qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, and may not be
relied upon or used for any other purpose. Such representations shall not be
construed as a guarantee to any degree that defaults or losses will not occur.
46. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
2-13
SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
SCHEDULE C
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: SunTrust Bank
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 29, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this 29th day of July, 2005.
SELLER: SUNTRUST BANK
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
4-1
EXHIBIT L
FORM OF INSPECTION REPORT
[Available at CMSA Website version 3.0 dated 4/01/03]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
SUBSTANTIALLY SIMILAR TO THE INFORMATION
REPEATED IN THE FORM OF STATEMENT TO
CERTIFICATEHOLDERS IN THE
PROSPECTUS SUPPLEMENT
EXHIBIT N
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[Available At CMSA Website version 3.0 dated 4/01/03]
EXHIBIT O
[RESERVED]
EXHIBIT P
[RESERVED]
EXHIBIT Q
[RESERVED]
EXHIBIT R
[RESERVED]
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR XXXXX FARGO MASTER SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Commercial Mortgage Pass-
Through Certificates Series 2005-HQ6
Space above this line for Recorder's use
________________________________________________________________________________
LIMITED POWER OF ATTORNEY
(MASTER)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6 ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of August 1, 2005 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Master Servicer under the Pooling and Servicing
Agreement ("Xxxxx Fargo Bank"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Xxxxx Fargo Bank of its duties as Master Servicer under the Pooling and
Servicing Agreement, giving and granting unto Xxxxx Fargo Bank full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of _________, 2005.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ______________ before me, _________________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ________________________________________________________
Name(s) of Document Signer(s)
____________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-1A
FORM OF POWER OF ATTORNEY FOR PAR MASTER SERVICER
RECORDING REQUESTED BY:
PRUDENTIAL ASSET RESOURCES, INC.
AND WHEN RECORDED MAIL TO:
PRUDENTIAL ASSET RESOURCES, INC.
[ADDRESS]
Space above this line for Recorder's use
________________________________________________________________________________
LIMITED POWER OF ATTORNEY
(MASTER)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6 ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of August 1, 2005 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint PRUDENTIAL
ASSET RESOURCES, INC., as Master Servicer under the Pooling and Servicing
Agreement ("PAR"), as its true and lawful attorney-in-fact for it and in its
name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable PAR to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by PAR of
its duties as Master Servicer under the Pooling and Servicing Agreement, giving
and granting unto PAR full power and authority to do and perform any and every
act necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that PAR shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of _________, 2005.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ______________ before me, _________________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ________________________________________________________
Name(s) of Document Signer(s)
____________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
CWCAPITAL ASSET MANAGEMENT LLC
AND WHEN RECORDED MAIL TO:
CWCAPITAL ASSET MANAGEMENT LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Commercial Mortgage Pass-
Through Certificates Series 2005-HQ6
Space above this line for Recorder's use
________________________________________________________________________________
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6 ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of August 1, 2005 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint CWCAPITAL
ASSET MANAGEMENT LLC, as Special Servicer under the Pooling and Servicing
Agreement ("CWCAPITAL"), as its true and lawful attorney-in-fact for it and in
its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable CWCAPITAL to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by CWCAPITAL
of its duties as Special Servicer under the Pooling and Servicing Agreement,
giving and granting unto CWCAPITAL full power and authority to do and perform
any and every act necessary, requisite, or proper in connection with the
foregoing and hereby ratifying, approving or confirming all that CWCAPITAL shall
lawfully do or cause to be done by virtue hereof.
S-2-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of _________, 2005.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ______________ before me, _________________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
____________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
S-2-3
EXHIBIT T
FORM OF DEBT SERVICE COVERAGE RATIO PROCEDURES
"Debt Service Coverage Ratios" generally means the ratio of "Underwritable
Cash Flow" estimated to be produced by the related Mortgaged Property to the
annualized amount of debt service payable under that Mortgage Loan.
"Underwritable Cash Flow" in each case is an estimate of stabilized cash flow
available for debt service. In general, it is the estimated stabilized revenue
derived from the use and operation of a Mortgaged Property (consisting primarily
of rental income) less the sum of (a) estimated stabilized operating expenses
(such as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), (b) fixed expenses (such as insurance, real estate taxes
and, if applicable, ground lease payments) and (c) capital expenditures and
reserves for capital expenditures, including tenant improvement costs and
leasing commissions. Underwritable Cash Flow generally does not reflect interest
expenses and non-cash items such as depreciation and amortization. In
determining Underwritable Cash Flow for a Mortgaged Property, the Master
Servicer may rely on rent rolls and other generally unaudited financial
information provided by the respective borrowers and may estimate cash flow
taking into account historical financial statements, material changes in the
operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
EXHIBIT U-1
(XXXXX MASTER SERVICER)
Form of Assignment and Assumption Submission to Special Servicer
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: PROPERTY ADDRESS
CITY, STATE, ZIP CODE
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
A. INSURANCE ESCROW BALANCE: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
----------------------------------------------------
Purchase price $
----------------------------------------------------
Buyer down payment $ (%)
----------------------------------------------------
Estimated closing date
----------------------------------------------------
1% loan fee split: Principal 40% - $
----------------------------------------------------
____________, Master Serv. 10% - $
----------------------------------------------------
CWCAPITAL, Special Serv. 50% - $
----------------------------------------------------
Most recent appraised value according to $
appraisal in Primary Servicer's possession
----------------------------------------------------
Loan-to-value as if initial underwriting %
----------------------------------------------------
Occupancy as of %
----------------------------------------------------
12/31/__ NOI $
----------------------------------------------------
Debt service coverage as of x
----------------------------------------------------
FINANCIAL CONDITION OF PROPOSED MORTGAGOR/GUARANTOR:
1. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare creditworthiness
and experience of proposed Mortgagor to that of transferring Mortgagor to
the extent information about transferring Mortgagor is available.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its assets)
b. Related debt
4. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
PROPERTY FINANCIAL SUMMARY: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
NEW ENVIRONMENTAL AND ENGINEERING DEVELOPMENTS (IF ANY) AND STATUS OF ISSUES
IDENTIFIED IN ORIGINAL REPORTS OR LOAN DOCUMENTS AS NEEDING REMEDIATION: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
ESCROW STATUS:
1. Explain status of all reserves
PROPERTY MANAGEMENT SUMMARY:
1. Who is proposed property management firm
2. Background and Experience
COLLATERAL VALUATION:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
RECOMMENDATION:
1. STATE RECOMMENDATION FOR APPROVAL.
2. HIGHLIGHT STRENGTHS AND WEAKNESSES. HOW ARE WEAKNESSES MITIGATED? (BULLET
POINTS ARE FINE)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
[ ]
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
Consent to Assignment & Assumption is
given:
CWCAPITAL ASSET MANAGEMENT LLC,
acting solely in its capacity as
Special Servicer
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
EXHIBIT U-2
(PAR MASTER SERVICER)
Form of Assignment and Assumption Submission to Special Servicer
and
Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Services
XXXXXX XXXXXXX CAPITAL I INC. COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6
ASSUMPTION/TRANSFER CASE PLAN
BORROWER / SELLER:
[NAME]
PURCHASER / ASSUMPTOR:
[NAME]
PROPERTY XXXXXXX
[XXXXXX XXXXXXX]
[XXXX, XXXXX, ZIP CODE]
[SUB-SERVICER NAME]
SUB-SERVICER LOAN #
(NAME OF MASTER SERVICER) LOAN #
PREPARED BY:
[NAME]
[TITLE]
[DATE]
DATE SUBMITTED
TO (NAME OF MASTER SERVICER)
[DATE]
TABLE OF CONTENTS
SECTION PAGE(S)
------- -------
EXECUTIVE SUMMARY 3
ASSUMPTION CASE MEMORANDUM 4 - XX
EXHIBIT A - Current OSAR/NOIWS
EXHIBIT B - Current Operating Statement and Rent Roll
EXHIBIT C - Current Property Inspection with photographs
EXHIBIT D - Organization chart(s) of new borrowing entity and old borrowing
entity
EXHIBIT E - Current Financial statements of current borrower/principals
EXHIBIT F - Financial statements and resume of new borrower/purchasing
entity/principals
EXHIBIT G - Credit References/reports for new borrower principals (Credit
Bureaus, Lexis/Nexus, D&B)
EXHIBIT H - Tax Returns of new borrower/principals (3 years)
EXHIBIT I - Certification/Documentation of OFAC or other protected person list
search for each Principal/Entity of Proposed Assumptor
EXHIBIT J - Credit info on new management company and management agreement
EXHIBIT K - Reserve and Current Status Screens from loan system
EXHIBIT L - EVIDENCE OF DOWN PAYMENT
EXHIBIT M - OTHER RELEVANT SUPPORTING DOCUMENTATION
EXECUTIVE SUMMARY
DATE: [Date]
<TABLE>
===============================================================================================
TOTAL RELATED DEBT WITHIN POOL
SUB-SERVICER LOAN # PRO SUP # ASSET MANAGER PHONE NUMBER PRO SUP # (No.) $ (amount)
-----------------------------------------------------------------------------------------------
BORROWER: DELEGATION(S) OF AUTHORITY: xxxxxxx PSA - Section [Section No.]
===============================================================================================
UNPAID
COLLECTION
OUTSTANDING EXPENSES AND ACCRUED PAID TO DATE OF MATURITY
PRINCIPAL ESCROW LATE FEES INTEREST DATE LAST PAYMENT DATE
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
</TABLE>
PROPOSAL:
Pursuant to Section: [Section No.] of the PSA and [Section No.] of the Deed of
Trust and Security Agreement, approval is requested to consent to the transfer
of ownership of collateral and assumption of the subject Mortgage Loan, and sale
of the property from ___________ ("Borrower") to a recently formed
Single-Purpose Entity [if required] entitled ___________ ("Purchaser").
Waiver of the "Due-on-Sale" provisions of Section [Section No.] of the [Describe
the Security Instruments, i.e., Multifamily Deed of Trust, Assignment of Rents
and Security Agreement].
Pursuant to Section [Section No.] of the Deed of Trust and Security Agreement,
the Borrower has submitted a $_________ non-refundable application fee.
Concurrently with the sale, assumption, and transfer, the Borrower will be
required to pay a non-refundable assumption fee in the estimated amount of
$_________. Additionally, the Borrower will be responsible for all out-of-pocket
costs and expenses associated with the sale and assumption.
* The present Borrower(s) / Principal(s) / Guarantor(s) [will/will not] be
released from any future liability under the _________ [recourse/exceptions
to non-recourse] provisions of the loan documents. [List Name/Title]
* The Purchaser / Principal(s) / Guarantor(s) will assume all liabilities
contained in the existing loan documents. [List Name/Title]
* Purchaser will be a Single-Purpose Entity as per PSA Section: [Section
No.].
* [Other conditions]
--------------------------------------------------------------------------------
COLLATERAL: [Brief Description]
================================================================================
This proposal is in compliance with the provision(s) of the respective servicing
contract.
================================================================================
SUB-SERVICER APPROVALS (ADJUST AS NECESSARY)
--------------------------------------------------------------------------------
SUB-SERVICER INTERNAL
ASSET MANAGER PORTFOLIO MANAGER COMMITTEE OTHER [Name]
--------------------------------------------------------------------------------
[ ] Approve [ ] Approve [ ] Approve [ ] Approve
[ ] Decline [ ] Decline [ ] Decline [ ] Decline
[ ] No Action [ ] No Action [ ] No Action [ ] No Action
Date: Date: Date: Date:
--------------------------------------------------------------------------------
COMMITTEE COMMENTS:
Approval Expiration Date: [Per Sub-Servicer's Internal Policy if any]
================================================================================
ASSUMPTION CASE MEMORANDUM
SECTION I / DESCRIPTION OF EXISTING MORTGAGE LOAN AND COLLATERAL:
THE NOTE IS SECURED BY A MORTGAGE, DEED OF TRUST, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT. SECTION [Section No.] OF THE [Mortgage][Deed of Trust]
ADDRESSES THE TRANSFER OF THE PROPERTY AND STATES THAT THE LENDER MAY DECLARE
ALL SUMS TO BE IMMEDIATELY DUE AND PAYABLE UNLESS THE PROPOSED PURCHASER'S
CREDITWORTHINESS AND ARRANGEMENT ABILITY ARE SATISFACTORY TO LENDER AND THE
PURCHASER EXECUTES A WRITTEN ASSUMPTION AGREEMENT CONTAINING TERMS REQUIRED BY
LENDER. THE LOAN DOCUMENTS [do/do not] REQUIRE THE BORROWER TO BE A SINGLE ASSET
AND/OR, SINGLE PURPOSE ENTITY.
DESCRIPTION OF EXISTING LOAN
SUB-SERVICER LOAN NO: MONTHLY P&I:
BORROWER(S): MONTHLY TAX ESCROW:
BORROWER TYPE: TAX ESCROW BALANCE:
ORIGINATION DATE: TAX STATUS:
ORIGINAL BALANCE: MONTHLY INSURANCE ESCROW:
CURRENT BALANCE: INSURANCE ESCROW BALANCE:
ASSUMPTION FEE RATE: INSURANCE STATUS:
ASSUMPTION AMOUNT: MONTHLY OTHER ESCROW:
PAYMENT STATUS: OTHER ESCROW STATUS:
NEXT PAY DATE: PRIOR LIENS:
MATURITY DATE: RECOURSE:
CURRENT RATE: PRINCIPAL(S):
FIXED/VARIABLE: GUARANTOR(S):
AMORTIZATION: PAYMENT HISTORY LAST 12 MONTHS:
WATCHLIST LOAN (Y/N): LOCKOUT PERIOD ENDS:
CROSS-COLLATERALIZED:
[Discuss the ownership of the asset, terms of the Note, including the recourse
provisions, security, interest rate and adjustments required, prepayment
penalty, etc.]
CURRENT DESCRIPTION OF COLLATERAL
PROPERTY NAME: CURRENT LTV:
PROPERTY ADDRESS: CONSTRUCTION TYPE:
NUMBER OF BLDGS.: PROPERTY MANAGER:
NUMBER OF STORIES: YEARS ON SITE:
NUMBER OF UNITS: PROPERTY VALUE:
NET RENTABLE SQ. FT: DATE OF VALUATION:
TOTAL PARKING: VALUE PER UNIT/S.F:
COVERED PARKING: LOAN PER UNIT/S.F.:
LAND SIZE: DSCR (1ST & 2ND):
YEAR BUILT: DATE OF LAST PROPERTY INSPECTION:
YEAR RENOVATED: INSPECTION CONDITION DESCRIPTION:
OCCUPANCY PERCENTAGE: O&M PLAN(S) IN PLACE:
OCCUPANCY DATE: LOCKBOX IN PLACE:
UNIT MIX:
XXXX XXXX # XX XXXXX XXXX XX. FT. ASKING RENT/MONTH
--------- ---------- ------------ -----------------
TOTAL
------------------------------------------------
Property Name Appraised Value Appraisal Date
------------------------------------------------
$
------------------------------------------------
[Briefly describe the general locality within the city, neighborhood and
demographics, and type and size of building(s).]
[Briefly describe the particulars of the building(s), including square footage
(gross and rentable), number of units, size of land, etc.]
[Briefly describe market changes or property changes that have occurred since
the last appraisal date]
SECTION II/ DESCRIPTION OF TRANSACTION:
Sellers: [Current Borrower(s)/Key Principal(s)/Guarantor(s)]
Purchasers/Assumptors: [Proposed Borrower(s)/Key Principal(s)/Guarantor(s)
Purchase Price:
Xxxxxxx Money Deposit:
Additional Cash to Close:
Closing Costs:
Secondary Financing: [Reference existing Note/Deed of Trust for any conditions
for secondary financing]
Purchase Price per Unit/S.F.:
Loan to Purchase Price:
[Describe the details of the transaction (i.e. unusual facets of the
transaction, if any, financial terms and conditions of the sale, including
source and description of equity being used for the purchase).]
SECTION III/ OPERATING INFORMATION (FINANCIAL PERFORMANCE OF COLLATERAL):
BELOW IS HISTORICAL OPERATING INFORMATION FOR THE COLLATERAL PROPERTY BASED
ON FINANCIALS PROVIDED BY THE BORROWER. A COPY OF THE OPERATING STATEMENTS
IS ATTACHED AS EXHIBIT [Letter].
<TABLE>
---------------------------------------------------------------------------------------------------------------------------
ANNUALIZED
2ND &
PRECEDING PRECEDING NORMALIZED
FYE PER FYE PER YTD PER PURCHASER'S PER VARIANCE
[DATE] [UNIT/ [DATE] [UNIT/ [DATE] [UNIT/ PRO-FORMA [UNIT/ **
$ S.F.] $ S.F.] $ S.F.] $ S.F.] $
---------------------------------------------------------------------------------------------------------------------------
RENTAL INCOME:
---------------------------------------------------------------------------------------------------------------------------
LESS OPERATING EXPENSES:
---------------------------------------------------------------------------------------------------------------------------
NET OPERATING INCOME:
---------------------------------------------------------------------------------------------------------------------------
LESS DEBT SERVICE:
---------------------------------------------------------------------------------------------------------------------------
CASH FLOW AFTER D/S:
---------------------------------------------------------------------------------------------------------------------------
DEBT SERVICE COVERAGE
RATIO:
(BEFORE DEBT SERVICE)
---------------------------------------------------------------------------------------------------------------------------
* TENANT IMPROVEMENTS:
---------------------------------------------------------------------------------------------------------------------------
* LEASING COMMISSION:
---------------------------------------------------------------------------------------------------------------------------
* REPLACEMENT RESERVES:
---------------------------------------------------------------------------------------------------------------------------
* OTHER CAPITAL EXPENSES:
---------------------------------------------------------------------------------------------------------------------------
NET CASH FLOW:
(AFTER RESERVES AND DEBT
SERVICE)
---------------------------------------------------------------------------------------------------------------------------
DEBT SERVICE COVERAGE
RATIO:
(INCLUDING RESERVES,
BEFORE DEBT SERVICE)
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
* DO NOT INCLUDED IN OPERATING EXPENSES
** VARIANCE SHOULD BE BETWEEN PRO-FORMA AND THE ANNUALIZED/NORMALIZED YTD OR
MOST RECENT FYE, WHICH EVER IS MORE CURRENT.
[Comment on Property's operations, trends and the Purchaser's pro-forma and
any material variances.]
SECTION IV/ FINANCIAL SUMMARY OF PRINCIPALS:
SELLER/BORROWER:
The present [Borrower(s)/Key Principal(s)/Guarantor(s)] are (is)
_____________________________, an [individual, Partnership, Corporation,
Single-Purpose Entity]. The [Borrower(s)/Key Principal(s)/Guarantor(s)] have
supplied [Sub-Servicer] financial statements dated ____________, 20__.
Cash $ Unsecured Debt $
Stocks and Bonds $ Income Real Estate Mortgages $
Residential Real Estate $ Total Liabilities $
Income Real Estate $ Net Worth $
Retirement Account $ Liabilities & Net Worth $
Automobiles $
Personal Property $
Total Assets $
[Modify the above categories for non-individual statements]
The [Borrower(s)/Key Principal(s)/Guarantor(s)] have also submitted a copy of
their 20__ and 20__ Tax Returns as shown below.
20__ 20__
---- ----
Wages and Salaries $ $
Taxable Interest $ $
Dividend Income $ $
Taxable Refunds $ $
Capital Gain or Loss $ $
Rental R.E., Partnerships & S Corps. $ $
Adjusted Gross Income $ $
[Modify the above categories for non-individual statements]
[Compare, Analyze and Comment on Borrower(s)/Key Principal(s)/Guarantor(s)
financial statements and tax returns]
PURCHASER/ASSUMPTOR:
The [Purchaser(s)/Key Principal(s)/Guarantor(s)] are (is)
_________________________ an [individual, Partnership, Corporation,
Single-Purpose Entity]. The [Purchaser(s)/Key Principal(s)/Guarantor(s)] have
supplied [Sub-Servicer] financial statement dated ___________________, 20__, as
shown below.
Cash $ Residential Mortgage $
Life Insurance (cash value) $ Income Real Estate Mortgages $
Residential Real Estate $ Total Liabilities $
Income Real Estate $ Net Worth $
Retirement Account $ Liabilities & Net Worth $
Automobiles $
Personal Property $
Total Assets $
[Modify the above categories for non-individual statements]
The [Purchaser(s)/Key Principal(s)/Guarantor(s)] supplied a copy of their 20____
and 20____ Tax Returns as shown below.
20__ 20__
---- ----
Wages and Salaries $ $
Taxable Interest $ $
Dividend Income $ $
Taxable Refunds $ $
Capital Gain or Loss $ $
Rental R.E., Partnerships & S Corps. $ $
Adjusted Gross Income $ $
[Modify the above categories for non-individuals]
[Compare, Analyze and Comment on Purchaser(s)/Key Principal(s)/Guarantor(s)
financial statements and tax returns]
[Discuss results of credit investigation ( i.e. D&B or TRW credit reports,
credit interviews).]
[Discuss results of OFAC or other protected person/organization for each
Principal/Entity of Assumptor]
SECTION V/ BACKGROUND & OPERATING HISTORY OF ASSUMING PARTY:
[Discuss new assumptor background and experience]
[Discuss the proposed management of the property and if a management company
will be used, discuss the Purchaser(s) and/or Management Company's experience
and qualifications.]
SECTION VI/ POOLING AND SERVICING AGREEMENT PROVISIONS:
THE ISSUE OF ASSUMPTION IS ADDRESSED IN SECTION [Section No.] OF THE POOLING AND
SERVICING AGREEMENT, WHICH STATES THAT THE SPECIAL SERVICER IS AUTHORIZED TO
ENTER INTO AN ASSUMPTION AGREEMENT WITH A PURCHASER IF [THE RATING AGENCY STATES
IN WRITING THAT THE TRANSFER AND ASSUMPTION WILL NOT RESULT IN A DOWNGRADE OR
QUALIFICATION OF THE RATING ASSIGNED TO THE SECURITIES, IF APPLICABLE] THE
CREDIT STATUS OF THE PURCHASER IS IN COMPLIANCE WITH THE REGULAR MORTGAGE
SERVICING STANDARDS OF THE SPECIAL SERVICER AND THE TERMS AND CONDITIONS OF THE
EXISTING LOAN DOCUMENTS ARE NOT MATERIALLY MODIFIED.
THE POOLING AND SERVICING AGREEMENT [does /does not] [in Section No. (if it does
require)] REQUIRE THE BORROWER TO BE A SINGLE-ASSET, SINGLE-PURPOSE OR
BANKRUPTCY-REMOTE ENTITY.
SECTION VII/ RECOMENDATION:
APPROVAL OF THE TRANSFER OF THE PROPERTY TO AND ASSUMPTION OF THE DEBT BY
_______________________________ [with/without] THE RELEASE OF PRESENT
BORROWER(S)/KEY PRINCIPAL(S)/GUARANTOR(S), ____________________, FROM THE
RECOURSE/CARVE OUT PROVISIONS OF THE LOAN DOCUMENTS UPON THE CONDITION(S) THAT
[State condition(s)] AS OF THE CLOSING DATE. THE PURCHASER WILL ASSUME ALL
LIABILITIES CONTAINED IN THE EXISTING LOAN DOCUMENTS AND THE PRESENT BORROWER(S)
WILL BE [if applicable] REQUIRED TO EXECUTE REAFFIRMATION LANGUAGE FOR THE SAME
LIABILITIES.
SECTION VIII/ SUBSTANTIATION:
FOLLOWING ARE SPECIFIC FACTORS WHICH SUBSTANTIATE SUB-SERVICER'S RECOMMENDATION
FOR APPROVAL OF THE ASSUMPTION/TRANSFER OF THIS LOAN:
1.
2.
3.
4.
5.
SECTION IX/ ATTACHMENTS:
See Table of Contents.
EXHIBIT V
Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Services
MORTGAGOR:
MASTER SERVICER LOAN #:
PRIMARY SERVICER LOAN #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS OF PROPERTY:
ASSET STATUS As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine financing
contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
--------------------------------------------------------------
Estimated closing date for financing:
--------------------------------------------------------------
Administrative fee to Primary Servicer $
--------------------------------------------------------------
Additional Fees, if any $
(50%: Special Servicer; 10%: Master Servicer; 40%:
Primary Servicer
--------------------------------------------------------------
Most recent appraised value according to appraisal $
in Primary Servicer's possession
--------------------------------------------------------------
Loan-to-value as of initial underwriting %
--------------------------------------------------------------
Occupancy as of %
--------------------------------------------------------------
12/31/__ NOI $
--------------------------------------------------------------
Debt service coverage as of x
--------------------------------------------------------------
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property:
(e.g. issues surrounding current occupancy, anchor tenants, tenant rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
ESCROW STATUS:
1. Explain status of all Reserves
COLLATERAL VALUATION:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
RECOMMENDATION:
1. STATE RECOMMENDATION FOR APPROVAL.
2. HIGHLIGHT STRENGTHS AND WEAKNESSES. HOW ARE WEAKNESSES MITIGATED? (BULLET
POINTS ARE FINE)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
[ ]
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
CWCAPITAL ASSET MANAGEMENT LLC, acting
solely in its capacity as Special
Servicer
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
SCHEDULE OF EXHIBITS TO ADDITIONAL LIEN, MONETARY ENCUMBRANCE OR MEZZANINE
FINANCING SUBMISSION
1. Most recent Income & Expense Statement for property and operating statement
review
2. Original Asset Summary for Mortgaged Property
3. [FOR MEZZANINE FINANCING: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [FOR SUBORDINATE MORTGAGE: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate loan documents in substantially the form to be executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
EXHIBIT W
RESTRICTED SERVICER REPORTS
[Available at CMSA Website version 3.0 dated 4/01/03]
EXHIBIT X
UNRESTRICTED SERVICER REPORTS
[Available at CMSA Website version 3.0 dated 4/01/03]
EXHIBIT Y
[Investor Certificate]
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ6
In accordance with the Pooling and Servicing Agreement, dated as of August
1, 2005 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Prudential Asset Resources, Inc. and Xxxxx Fargo bank, National
Association, as Master Servicers, CWCapital Asset management LLC, as
Special Servicer, LaSalle Bank National Association, as Trustee and Xxxxx
Fargo Bank, N.A, as Paying Agent and Certificate Registrar (the "Paying
Agent"), with respect to the above referenced certificates (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
__ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making an evaluation in connection with purchasing the related
Certificates, from its accountants and attorneys, and otherwise from such
governmental or banking authorities or agencies to which the undersigned is
subject), and such Information will not, without the prior written consent
of the Paying Agent, be otherwise disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or
in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Paying Agent and the Trust Fund for
any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
-----------------------------------------
Beneficial Owner or Prospective Purchaser
By:
-------------------------------------
Title:
----------------------------------
Company:
--------------------------------
Phone:
----------------------------------
EXHIBIT Z
Form of Notice and Certification
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF
OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: [Address]
Attn:
From: _____________________________________, in its capacity as Servicer (the
"Servicer") under the Pooling and Servicing Agreement dated as of
__________________ (the "Pooling and Servicing Agreement"), among the
Servicer, __________________as Trustee, and others.
Date: _________, 20___
Re: _______________________________________.
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names: ____________________
____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
2. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the
type checked below:
_____ a full defeasance of the payments scheduled to be due in
respect of the entire Principal Balance of the
_____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the Principal Balance of the
Mortgage Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire Principal Balance;
3. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE
EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A HERETO,
WHICH EXCEPTIONS THE SERVICER HAS DETERMINED, CONSISTENT WITH THE
SERVICING STANDARD, WILL HAVE NO MATERIAL ADVERSE EFFECT ON THE
MORTGAGE LOAN OR THE DEFEASANCE TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE, AND THE
TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED THEREIN WERE
SATISFIED IN ALL MATERIAL RESPECTS IN COMPLETING THE
DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT (I)
CONSTITUTE "GOVERNMENT SECURITIES" AS DEFINED IN SECTION
2(A)(16) OF THE INVESTMENT COMPANY ACT OF 1940 AS AMENDED
(15 U.S.C. 80A-1), (II) ARE LISTED AS "QUALIFIED INVESTMENTS
FOR 'AAA' FINANCINGS" UNDER PARAGRAPHS 1, 2 OR 3 OF "CASH
FLOW APPROACH" IN STANDARD & POOR'S PUBLIC FINANCE CRITERIA
2000, AS AMENDED TO THE DATE OF THE DEFEASANCE, (III) ARE
RATED 'AAA' BY STANDARD & POOR'S, (IV) IF THEY INCLUDE A
PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT MATURITY CANNOT
VARY OR CHANGE, AND (V) ARE NOT SUBJECT TO PREPAYMENT, CALL
OR EARLY REDEMPTION. SUCH SECURITIES HAVE THE
CHARACTERISTICS SET FORTH BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM COUNSEL
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING
STANDARD) THAT THE DEFEASANCE WILL NOT RESULT IN AN ADVERSE
REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE COLLATERAL WILL
BE OWNED BY AN ENTITY (THE "DEFEASANCE OBLIGOR") AS TO WHICH
ONE OF THE STATEMENTS CHECKED BELOW IS TRUE:
_____ the related Mortgagor was a Single-Purpose Entity
(as defined in Standard & Poor's Structured
Finance Ratings Real Estate Finance Criteria, as
amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the
defeasance collateral and real property securing
Mortgage Loans included in the pool.
_____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
_____ the Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for
the benefit of the Trust to own the defeasance
collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR CONFIRMATION OF
THE CREDIT, OR THE ACCOUNTANT'S LETTER DESCRIBED BELOW
CONTAINED STATEMENTS THAT IT REVIEWED A BROKER OR SIMILAR
CONFIRMATION OF THE CREDIT, OF THE DEFEASANCE COLLATERAL TO
AN ELIGIBLE ACCOUNT (AS DEFINED IN THE S&P CRITERIA) IN THE
NAME OF THE DEFEASANCE OBLIGOR, WHICH ACCOUNT IS MAINTAINED
AS A SECURITIES ACCOUNT BY THE TRUSTEE ACTING AS A
SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO MAKE THE
SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM THE PROCEEDS OF
THE DEFEASANCE COLLATERAL DIRECTLY TO THE SERVICER'S
COLLECTION ACCOUNT IN THE AMOUNTS AND ON THE DATES SPECIFIED
IN THE MORTGAGE LOAN DOCUMENTS OR, IN A PARTIAL DEFEASANCE,
THE PORTION OF SUCH SCHEDULED PAYMENTS ATTRIBUTED TO THE
ALLOCATED LOAN AMOUNT FOR THE REAL PROPERTY DEFEASED,
INCREASED BY ANY DEFEASANCE PREMIUM SPECIFIED IN THE
MORTGAGE LOAN DOCUMENTS (THE "SCHEDULED PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN
CONFIRMATION FROM A FIRM OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS, WHO WERE APPROVED BY SERVICER IN ACCORDANCE
WITH THE SERVICING STANDARD, STATING THAT (I) REVENUES FROM
PRINCIPAL AND INTEREST PAYMENTS MADE ON THE DEFEASANCE
COLLATERAL (WITHOUT TAKING INTO ACCOUNT ANY EARNINGS ON
REINVESTMENT OF SUCH REVENUES) WILL BE SUFFICIENT TO TIMELY
PAY EACH OF THE SCHEDULED PAYMENTS AFTER THE DEFEASANCE
INCLUDING THE PAYMENT IN FULL OF THE MORTGAGE LOAN (OR THE
ALLOCATED PORTION THEREOF IN CONNECTION WITH A PARTIAL
DEFEASANCE) ON ITS MATURITY DATE (OR, IN THE CASE OF AN ARD
LOAN, ON ITS ANTICIPATED REPAYMENT DATE), (II) THE REVENUES
RECEIVED IN ANY MONTH FROM THE DEFEASANCE COLLATERAL WILL BE
APPLIED TO MAKE SCHEDULED PAYMENTS WITHIN FOUR (4) MONTHS
AFTER THE DATE OF RECEIPT, AND (III) INTEREST INCOME FROM
THE DEFEASANCE COLLATERAL TO THE DEFEASANCE OBLIGOR IN ANY
CALENDAR OR FISCAL YEAR WILL NOT EXCEED SUCH DEFEASANCE
OBLIGOR'S INTEREST EXPENSE FOR THE MORTGAGE LOAN (OR THE
ALLOCATED PORTION THEREOF IN A PARTIAL DEFEASANCE) FOR SUCH
YEAR.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING
STANDARD, THAT (I) THE AGREEMENTS EXECUTED BY THE MORTGAGOR
AND/OR THE DEFEASANCE OBLIGOR IN CONNECTION WITH THE
DEFEASANCE ARE ENFORCEABLE AGAINST THEM IN ACCORDANCE WITH
THEIR TERMS, AND (II) THE TRUSTEE WILL HAVE A PERFECTED,
FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE
COLLATERAL DESCRIBED ABOVE.
J. THE AGREEMENTS EXECUTED IN CONNECTION WITH THE DEFEASANCE
(I) PERMIT REINVESTMENT OF PROCEEDS OF THE DEFEASANCE
COLLATERAL ONLY IN PERMITTED INVESTMENTS (AS DEFINED IN THE
S&P CRITERIA), (II) PERMIT RELEASE OF SURPLUS DEFEASANCE
COLLATERAL AND EARNINGS ON REINVESTMENT TO THE DEFEASANCE
OBLIGOR OR THE MORTGAGOR ONLY AFTER THE MORTGAGE LOAN HAS
BEEN PAID IN FULL, IF ANY SUCH RELEASE IS PERMITTED, (III)
PROHIBIT ANY SUBORDINATE LIENS AGAINST THE DEFEASANCE
COLLATERAL, AND (IV) PROVIDE FOR PAYMENT FROM SOURCES OTHER
THAN THE DEFEASANCE COLLATERAL OR OTHER ASSETS OF THE
DEFEASANCE OBLIGOR OF ALL FEES AND EXPENSES OF THE
SECURITIES INTERMEDIARY FOR ADMINISTERING THE DEFEASANCE AND
THE SECURITIES ACCOUNT AND ALL FEES AND EXPENSES OF
MAINTAINING THE EXISTENCE OF THE DEFEASANCE OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS OF THE
DATE OF DEFEASANCE WAS $___________ [$5,000,000 OR LESS OR
LESS THAN ONE PERCENT OF POOL BALANCE, WHICHEVER IS LESS]
WHICH IS LESS THAN 1% OF THE AGGREGATE CERTIFICATE BALANCE
OF THE CERTIFICATES AS OF THE DATE OF THE MOST RECENT PAYING
AGENT'S MONTHLY CERTIFICATEHOLDER REPORT RECEIVED BY US (THE
"CURRENT REPORT").
L. THE DEFEASANCE DESCRIBED HEREIN, TOGETHER WITH ALL PRIOR AND
SIMULTANEOUS DEFEASANCES OF MORTGAGE LOANS, BRINGS THE TOTAL
OF ALL FULLY AND PARTIALLY DEFEASED MORTGAGE LOANS TO
$__________________, WHICH IS _____% OF THE AGGREGATE
CERTIFICATE BALANCE OF THE CERTIFICATES AS OF THE DATE OF
THE CURRENT REPORT.
4. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS IMPOSED
SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE, SUBJECT TO THE
LIMITATIONS IMPOSED BY THE MORTGAGE LOAN DOCUMENTS, AS ARE
CONSISTENT WITH THE SERVICING STANDARD.
5. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL
AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE
DEFEASANCE OBLIGOR, AND OPINIONS OF COUNSEL AND INDEPENDENT
ACCOUNTANTS EXECUTED AND DELIVERED IN CONNECTION WITH THE
DEFEASANCE DESCRIBED ABOVE AND THAT ORIGINALS OR COPIES OF SUCH
AGREEMENTS, INSTRUMENTS AND OPINIONS HAVE BEEN TRANSMITTED TO THE
TRUSTEE FOR PLACEMENT IN THE RELATED MORTGAGE FILE OR, TO THE
EXTENT NOT REQUIRED TO BE PART OF THE RELATED MORTGAGE FILE, ARE
IN THE POSSESSION OF THE SERVICER AS PART OF THE SERVICER'S
MORTGAGE FILE.
6. CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND CERTIFICATIONS
DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE WITH THE SERVICING
STANDARD SET FORTH IN, AND THE OTHER APPLICABLE TERMS AND
CONDITIONS OF, THE POOLING AND SERVICING AGREEMENT.
7. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER HAS
CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID
CONSTITUTE A SERVICING OFFICER AS OF THE DATE OF THE DEFEASANCE
DESCRIBED ABOVE.
8. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO YOU
UPON REQUEST.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification
to be executed as of the date captioned above.
SERVICER:
------------------------------
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT AA
Form of Primary Servicing Agreement
(Xxxxx)
PRIMARY SERVICING AGREEMENT
DATED AS OF _______________, 20__
BETWEEN
[NAME OF SUCCESSOR MASTER SERVICER]
MASTER SERVICER
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
DATED AS OF ________ 1, 20__
AMONG
XXXXXX XXXXXXX CAPITAL I INC.
AS DEPOSITOR,
[NAME OF SUCCESSOR MASTER SERVICER]
AS SUCCESSOR MASTER SERVICER,
CWCAPITAL ASSET MANAGEMENT LLC
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION
AS TRUSTEE,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT AND CERTIFICATE REGISTRAR
AND
ABN AMRO BANK N.V.
AS FISCAL AGENT
This PRIMARY SERVICING AGREEMENT, dated and effective as of
[__________] 1, 20__, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (in
the capacity of primary servicer, the "Primary Servicer") and [NAME OF SUCCESSOR
MASTER SERVICER], a ____________, acting solely in its capacity as successor
Master Servicer under the Pooling and Servicing Agreement (as defined below)
(the "Master Servicer").
PRELIMINARY STATEMENT
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo
Bank, National Association, as a master servicer, Prudential Asset Resources,
Inc. as a master servicer, CWCapital Asset Management LLC, as special servicer
(together with its successors and assigns in such capacity, the "Special
Servicer"), ASM AMRO Bank N.V., as fiscal agent, Xxxxx Fargo Bank, National
Association, as paying agent and certificate registrar, and LaSalle Bank
National Association, as trustee [together with its successors and assigns in
such capacity, the "Trustee"), have entered into a Pooling and Servicing
Agreement, dated as of [date], 20__, relating to the Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6 (as amended, from time to time, the
"Pooling and Servicing Agreement"), a copy of which is attached hereto as
Exhibit A;
WHEREAS, [Name of Successor Master Servicer], has become the successor
Master Servicer under the Pooling and Servicing Agreement; and
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
(each, a "Mortgage Loan") and provide, on behalf of the Master Servicer, the
necessary servicing of the Mortgage Loans performed in a manner consistent with
the Servicing Standard and in a manner consistent with this Agreement and the
Pooling and Servicing Agreement from the Closing Date until this Agreement is
terminated in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Primary Servicer and the Master Servicer hereby
agree as follows:
LXV.
DEFINITIONS
A. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement.
"Agreement": This Primary Servicing Agreement, as modified, amended
and supplemented from time to time, including all exhibits, schedules and
addenda hereto.
"Day One Report": With respect to each Mortgage Loan, a statement in
the form of the CMSA Loan Periodic Update File (in the form and containing the
information called for by the version of such report in effect at the time under
the reporting standards of the CMSA) setting forth the scheduled payments of
interest and principal and the amount of any unanticipated prepayments of which
the Primary Servicer has received notice (including without limitation those for
which a notice has been given to the effect that the prepayment will be made
at any time during the applicable Collection Period), indicating the Mortgage
Loan and on account of what type of payment such amount is to be applied on
behalf of the related Mortgagor.
"Loan Status Reports": The form of reports to be submitted by Primary
Servicer with respect to reporting about the status of real estate taxes, status
of insurance and status of UCC financing statement for the Mortgage Loans as
more particularly described and set forth in Exhibit B-3.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents
contained in the Mortgage File for the Mortgage Loans.
"Monthly Remittance Report": The Monthly Remittance Report described
in Exhibit B-2 hereto and required to be delivered by the Primary Servicer to
the Master Servicer under the Task Description.
"Mortgage Loan": As defined in the Preliminary Statement.
"Officers Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President or an employee designated as a Primary Servicing
Officer pursuant to this Agreement.
"Payment and Collection Description": The description of the
obligations of the Primary Servicer with respect to collection and remittance of
payments on the Mortgage Loans as more particularly described in clauses (d),
(e) and (f) of Section 2.1.
"Payment and Loan Status Reports": Collectively, the Monthly
Remittance Reports, the Loan Status Reports and the following reports described
in the Task Description: the Operating Statement Analysis Reports, the NOI
Adjustment Worksheets, the CMSA Loan Periodic Update File, the CMSA Property
File, the CMSA Servicer Watch List and the CMSA Comparative Financial Status
Report.
"Pooling and Servicing Agreement": As defined in the preamble to this
Agreement.
"Power of Attorney": A power of attorney of the Master Servicer in
favor of the Primary Servicer substantially in the form of Exhibit C hereto.
"Primary Servicer": As defined in the preamble to this Agreement.
"Primary Servicer Collection Account": An account which is an Eligible
Account established by Primary Servicer for the purposes set forth in this
Agreement in the name of "Xxxxx Fargo Bank, National Association, as Primary
Servicer for [NAME OF SUCCESSOR MASTER SERVICER], as Master Servicer for LaSalle
Bank National Association, as Trustee
2
for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Determination Date": The Business Day immediately
preceding each Determination Date.
"Primary Servicer Errors and Omissions Insurance Policy": As defined
in Section 5.4(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.4(a) hereof.
"Primary Servicer Remittance Date": For each Distribution Date, the
Business Day immediately succeeding the related Primary Servicer Determination
Date.
"Primary Servicer Servicing Documents": (a) A copy of the documents
contained in the Mortgage Files for the Mortgage Loans and (b) all other
servicing documents and records in possession of Primary Servicer that relate to
or are used for the servicing of the Mortgage Loans and that are not required to
be part of the applicable Mortgage Files.
"Primary Servicing Fee": For each calendar month, as to each Mortgage
Loan, one-twelfth of the Primary Servicing Fee Rate multiplied by the Scheduled
Principal Balance of each Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on the Mortgage Loan and, only
from collections on such Mortgage Loan. The Primary Servicing Fee shall be
determined in the same manner (other than the rate and basis of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month.
"Primary Servicing Fee Rate": For each Mortgage Loan, the rate per
annum set forth as the "primary servicing fee rate" for such Mortgage Loan in
the mortgage loan schedule attached to the Pooling and Servicing Agreement.
"Primary Servicing Officer": Any officer or employee of the Primary
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 or employees furnished to the Master Servicer by the Primary
Servicer and signed by an officer of the Primary Servicer, as such list may from
time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2
hereof.
"Services": Those activities to be provided by the Primary Servicer
for the Servicing of the Mortgage Loans pursuant to the provisions of this
Agreement.
"Servicing": With respect to any Mortgage Loan, the right and
obligation of the Primary Servicer to administer such Mortgage Loan in
accordance with the provisions hereof.
3
"Servicing Documents": The Master Servicer Servicing Documents and
Primary Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, to service
and administer the Mortgage Loans that the Primary Servicer is obligated to
service and administer pursuant to this Agreement on behalf of the Master
Servicer and in the best interests of and for the benefit of the
Certificateholders (as determined by the Primary Servicer in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows: (a) with the same care, skill
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; (b) with a
view to the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans; and without regard to: (I) any other
relationship that the Primary Servicer, or any Affiliate thereof, may have with
the related Mortgagor; (II) the ownership of any Certificate by the Primary
Servicer, or any Affiliate thereof; (III) the Master Servicer's obligation to
make Advances; and (IV) the right of the Primary Servicer (or any Affiliate
thereof) to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction; provided, however, that in no event shall the foregoing standards
be less than the applicable provisions of the Servicing Standard set forth in
the Pooling and Servicing Agreement.
"Special Servicer": As defined in the Preliminary Statement.
"Successor Primary Servicer": The Person selected by the Master
Servicer upon the termination of the Primary Servicer resulting from any Primary
Servicer Default, if any, who shall thereafter perform the Services with respect
to the Mortgage Loans; provided, that the Master Servicer shall perform all
Services with respect to the Mortgage Loan until such Person, if any, is
selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and Master Servicer with respect to the Mortgage Loans as set
forth in Exhibit B-S attached to this Agreement.
"Trustee": As defined in the Preliminary Statement.
LXVI.
PRIMARY SERVICING
A. PRIMARY SERVICING.
1. FROM THE CLOSING DATE UNTIL THE PRIMARY SERVICING TERMINATION DATE,
MASTER SERVICER HEREBY AUTHORIZES AND DIRECTS THE PRIMARY SERVICER TO SERVICE,
AND THE PRIMARY SERVICER HEREBY AGREES TO SERVICE, THE MORTGAGE LOANS AS PRIMARY
SERVICER ON
4
BEHALF AND AT THE DIRECTION OF THE MASTER SERVICER AS PROVIDED IN THIS
AGREEMENT.
2. THE PRIMARY SERVICER SHALL PERFORM ALL TASKS AND RESPONSIBILITIES
NECESSARY TO SATISFY THE REQUIREMENTS SET FORTH UNDER THE TASK DESCRIPTION, IN
EACH CASE IN A MANNER NOT INCONSISTENT WITH THE POOLING AND SERVICING AGREEMENT.
3. ON OR BEFORE THE CLOSING DATE THE PRIMARY SERVICER SHALL ESTABLISH
THE PRIMARY SERVICER COLLECTION ACCOUNT, WHICH SHALL BE AN ELIGIBLE ACCOUNT,
NOTIFY THE MASTER SERVICER IN WRITING OF THE NAME AND ADDRESS OF THE DEPOSITORY
INSTITUTION AT WHICH THE PRIMARY SERVICER COLLECTION ACCOUNT IS MAINTAINED AND
THE NUMBER OF THE PRIMARY SERVICER COLLECTION ACCOUNT. THE PRIMARY SERVICER
SHALL DELIVER TO THE MASTER SERVICER PRIOR WRITTEN NOTICE OF ANY CHANGE IN THE
LOCATION, NAME OR ADDRESS OF THE APPLICABLE DEPOSITORY INSTITUTION OR ACCOUNT
NUMBER OF THE PRIMARY SERVICER COLLECTION ACCOUNT.
4. THE PRIMARY SERVICER SHALL MAKE EFFORTS CONSISTENT WITH THE
SERVICING STANDARD TO COLLECT ALL MONTHLY PAYMENTS OF PRINCIPAL AND INTEREST
WITH RESPECT TO THE MORTGAGE LOANS (EXCEPT FOR PAYMENTS DUE ON OR PRIOR TO THE
CUT-OFF DATE), AS WELL AS LATE CHARGES, DEFAULT INTEREST, PREPAYMENT PREMIUMS,
INSURANCE PROCEEDS, CONDEMNATION PROCEEDS AND ANY AND ALL OTHER AMOUNTS DUE FROM
THE MORTGAGOR OR A THIRD PARTY WITH RESPECT TO THE MORTGAGE LOANS PURSUANT TO
THE MORTGAGE LOAN DOCUMENTS FOR EACH MORTGAGE LOAN; PROVIDED, HOWEVER, THAT WITH
RESPECT TO ANY PAYMENTS THAT ARE REQUIRED UNDER THE TERMS OF THE APPLICABLE
MORTGAGE LOAN DOCUMENTS TO BE MADE DIRECTLY TO A PERSON OTHER THAN THE HOLDER OF
THE RELATED MORTGAGE LOAN, THE PRIMARY SERVICER SHALL USE EFFORTS CONSISTENT
WITH THE SERVICING STANDARD TO CAUSE SUCH PAYMENTS TO BE MADE. THE PRIMARY
SERVICER SHALL DEPOSIT ALL PAYMENTS AND COLLECTIONS RECEIVED BY THE PRIMARY
SERVICER INTO THE PRIMARY SERVICER COLLECTION ACCOUNT ON OR BEFORE THE NEXT
BUSINESS DAY AFTER RECEIVING EACH SUCH PAYMENT; PROVIDED, HOWEVER, THAT THE
PRIMARY SERVICER SHALL BE ENTITLED TO RETAIN AND PAY TO ITSELF THE RELATED
PRIMARY SERVICING FEE FROM THE INTEREST PORTION OF ANY SUCH PAYMENTS.
5. THE PRIMARY SERVICER SHALL NOT WITHDRAW FUNDS FROM THE PRIMARY
SERVICER COLLECTION ACCOUNT, EXCEPT AS FOLLOWS: (1) ON THE PRIMARY SERVICER
REMITTANCE DATE OCCURRING IN EACH MONTH, THE PRIMARY SERVICER SHALL REMIT TO THE
MASTER SERVICER BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS ANY AND ALL
AMOUNTS ON DEPOSIT IN THE PRIMARY SERVICER COLLECTION ACCOUNT AS OF THE CLOSE OF
BUSINESS ON THE PRIMARY SERVICER DETERMINATION DATE
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OCCURRING IN SUCH MONTH (NET OF ANY AMOUNTS PERMITTED TO BE WITHDRAWN PRIOR
THERETO), OTHER THAN ANY AMOUNTS THAT REPRESENT SCHEDULED PAYMENTS RECEIVED FOR
A DUE DATE OCCURRING AFTER SUCH PRIMARY SERVICER DETERMINATION DATE; (2) THE
PRIMARY SERVICER SHALL REMIT TO THE MASTER SERVICER BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS WITHIN ONE BUSINESS DAY FOLLOWING THE RECEIPT
THEREOF ANY LATE PAYMENTS AND ANY PRINCIPAL PREPAYMENTS OR OTHER UNSCHEDULED
PAYMENTS OR BALLOON PAYMENTS (IN EACH CASE INCLUDING THE RELATED INTEREST
PAYMENT PAID BY THE MORTGAGOR); (3) THE PRIMARY SERVICER SHALL BE ENTITLED TO
WITHDRAW AND PAY TO ITSELF ANY INVESTMENT OR OTHER INCOME EARNED ON AMOUNTS ON
DEPOSIT IN THE PRIMARY SERVICER COLLECTION ACCOUNT TO THE EXTENT PROVIDED BELOW;
(4) THE PRIMARY SERVICER SHALL WITHDRAW AND PAY TO ITSELF EACH OTHER ITEM OF
COMPENSATION TO WHICH IT IS ENTITLED (BUT ONLY FROM THE AMOUNTS FROM WHICH SUCH
COMPENSATION IS PAYABLE AS OTHERWISE PROVIDED HEREIN) AND (5) THE PRIMARY
SERVICER SHALL BE ENTITLED TO WITHDRAW FROM THE PRIMARY SERVICER COLLECTION
ACCOUNT AT ANY TIME ANY AMOUNTS ON DEPOSIT THEREIN THAT WERE NOT REQUIRED TO BE
DEPOSITED INTO THE PRIMARY SERVICER COLLECTION ACCOUNT. THE MASTER SERVICER
SHALL NOTIFY THE PRIMARY SERVICER NOT LATER THAN 3:00 P.M. (NEW YORK CITY TIME)
ON EACH PRIMARY SERVICER REMITTANCE DATE IF THE MASTER SERVICER HAS NOT THEN
RECEIVED A REMITTANCE FROM THE PRIMARY SERVICER. THE PRIMARY SERVICER SHALL KEEP
AND MAINTAIN SEPARATE ACCOUNTING FOR THE PURPOSE OF JUSTIFYING ANY WITHDRAWALS
MADE FROM THE PRIMARY SERVICER COLLECTION ACCOUNT. IN THE EVENT ANY PAYMENTS
RECEIVED BY PRIMARY SERVICER BECOMES NSF AFTER THE MONIES ASSOCIATED WITH THAT
PAYMENT HAVE BEEN REMITTED TO THE MASTER SERVICER, THE MASTER SERVICER WILL
RETURN SUCH MONEYS TO PRIMARY SERVICER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE
FUNDS WITHIN ONE BUSINESS DAY FOLLOWING NOTICE FROM THE PRIMARY SERVICER. FUNDS
IN THE PRIMARY SERVICER COLLECTION ACCOUNT MAY BE INVESTED AND, IF INVESTED,
SHALL BE INVESTED BY, AND AT THE RISK OF, THE PRIMARY SERVICER IN ELIGIBLE
INVESTMENTS SELECTED BY THE PRIMARY SERVICER WHICH SHALL MATURE, UNLESS PAYABLE
ON DEMAND, NOT LATER THAN THE BUSINESS DAY IMMEDIATELY PRECEDING THE NEXT DATE
ON WHICH SUCH FUNDS ARE REQUIRED TO BE REMITTED TO THE MASTER SERVICER, AND ANY
SUCH ELIGIBLE INVESTMENT SHALL NOT BE SOLD OR DISPOSED OF PRIOR TO ITS MATURITY
UNLESS PAYABLE ON DEMAND. ALL SUCH ELIGIBLE INVESTMENTS SHALL BE MADE IN THE
NAME OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE
XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ6." AN AMOUNT EQUAL TO ALL INCOME AND GAIN REALIZED FROM ANY SUCH
INVESTMENT SHALL BE FOR THE ACCOUNT OF THE PRIMARY SERVICER AS ADDITIONAL
SERVICING COMPENSATION AND THE PRIMARY SERVICER SHALL BE ENTITLED TO WITHDRAW
SUCH INCOME AND GAIN FROM THE PRIMARY SERVICER COLLECTION ACCOUNT AT ANY TIME
AND FROM TIME TO TIME. THE
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AMOUNT OF ANY LOSSES INCURRED IN RESPECT OF ANY SUCH INVESTMENTS SHALL BE FOR
THE ACCOUNT OF THE PRIMARY SERVICER, WHICH SHALL DEPOSIT THE AMOUNT OF SUCH LOSS
(TO THE EXTENT NOT OFFSET BY INCOME FROM OTHER INVESTMENTS) IN THE PRIMARY
SERVICER COLLECTION ACCOUNT OUT OF ITS OWN FUNDS IMMEDIATELY AS REALIZED.
6. WITH RESPECT TO ESCROW OR RESERVE PAYMENTS AS LISTED ON THE TASK
DESCRIPTION, THE PRIMARY SERVICER SHALL COLLECT ESCROW OR RESERVE AMOUNTS WITH
RESPECT TO THE MORTGAGE LOANS, AND SHALL DEPOSIT SUCH FUNDS IN AN ESCROW
ACCOUNT, WHICH SHALL BE AN ELIGIBLE ACCOUNT, AND SHALL MAINTAIN, DISBURSE AND
ACCOUNT FOR SUCH FUNDS AS PROVIDED IN THE TASK DESCRIPTION, FOR REAL ESTATE
TAXES, INSURANCE AND RESERVES, AND ESCROWS FOR REPAIRS, REPLACEMENTS, PRINCIPAL
AND INTEREST PAYMENTS AND LEASE PAYMENTS, AND ANY OTHER MATTERS SPECIFIED IN ANY
AGREEMENT IN WHICH FUNDS ARE HELD AT THE TIME, AND IN THE MANNER AND FOR THE
PURPOSES AS OTHERWISE REQUIRED OR DELINEATED IN THE MORTGAGE LOAN DOCUMENTS FOR
EACH MORTGAGE LOAN AND WITH RESPECT TO THE MASTER SERVICER UNDER THE POOLING AND
SERVICING AGREEMENT. THE PRIMARY SERVICER MAY DIRECT THE INVESTMENT OF SUCH
FUNDS SUBJECT TO AND IN ACCORDANCE WITH THE CRITERIA AND REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT RELATING TO ESCROW ACCOUNTS, INCLUDING
WITHOUT LIMITATION THE OBLIGATION TO DEPOSIT INTO THE ESCROW ACCOUNT THE AMOUNT
OF ANY INVESTMENT LOSSES TO THE EXTENT REQUIRED IN THE POOLING AND SERVICING
AGREEMENT. THE PRIMARY SERVICER SHALL HAVE THE BENEFIT AND SHALL RETAIN ALL
INTEREST AND INCOME EARNED ON THE ESCROW ACCOUNTS FOR THE MORTGAGE LOANS THAT IS
NOT PAID TO MORTGAGORS.
7. NOTWITHSTANDING ANY CONTRARY PROVISION OF THE TASK DESCRIPTION, IF
AT ANY TIME THAT THE PRIMARY SERVICER DETERMINES THAT ANY MORTGAGOR MAY NOT OR
DOES NOT MAINTAIN TERRORISM INSURANCE REQUIRED BY THE MORTGAGE LOAN DOCUMENTS
AND THE POOLING AND SERVICING AGREEMENT, THE PRIMARY SERVICER SHALL PROMPTLY
NOTIFY THE MASTER SERVICER OF SUCH POSSIBLE OR ACTUAL FAILURE AND, IF REQUESTED,
PROVIDE THE MASTER SERVICER WITH DETAILS OF THE MORTGAGOR'S INSURANCE COVERAGE.
THE MASTER SERVICER WILL MAKE (I) THE DETERMINATION OF WHETHER OR NOT THE
INSURANCE COVERAGE MEETS THE REQUIREMENTS OF THE MORTGAGE LOAN DOCUMENTS AND THE
POOLING AND SERVICING AGREEMENT, INCLUDING ANY ASSESSMENT OF THE AVAILABILITY OF
SUCH INSURANCE AT COMMERCIAL REASONABLE RATES AND TERMS, (II) ANY DECISION TO
ADVANCE OR FORCE PLACE INSURANCE AND (III) ANY DETERMINATION TO WAIVE OR ENFORCE
ANY SUCH INSURANCE REQUIREMENT.
B. STANDARD OF CARE. The Primary Servicer shall perform all Services
on behalf of the Master Servicer in accordance with the terms of this Agreement,
the Servicing
7
Standard and the applicable provisions of the Pooling and Servicing Agreement.
Primary Servicer and the Master Servicer agree that, in connection with the
performance of its obligations hereunder, the Primary Servicer shall be entitled
to request from the Master Servicer, and the Master Servicer agrees that it
shall provide, express instructions for the completion of any of the Services to
be performed or completed by the Primary Servicer, to the extent necessary to
clarify any ambiguities in the terms of this Agreement. The Master Servicer
further agrees that the Primary Servicer shall be entitled to rely upon any such
written instructions. The Master Servicer shall be entitled from time to time to
provide reasonable instructions to the Primary Servicer regarding the actions or
inactions that comply with the Servicing Standard under the Pooling and
Servicing Agreement and the Primary Servicer shall comply with such
instructions.
C. COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER. As
consideration for the Primary Servicer's performance of the Services hereunder,
the Primary Servicer shall be entitled to deduct (and retain from the remittance
otherwise required to be made to the Master Servicer) the Primary Servicing Fee
in accordance with Section 2.1(e) of this Agreement, with respect to the related
Collection Period for the Mortgage Loans, and only with respect to such Mortgage
Loan for which a payment was received by the Master Servicer or forwarded to the
Master Servicer by the Primary Servicer. Notwithstanding the foregoing, Primary
Servicer shall not be entitled to a Primary Servicing Fee with respect to any
Mortgage Loan for which a Servicing Transfer Event has occurred unless such
Mortgage Loan becomes a Rehabilitated Mortgage Loan or with respect to which the
Primary Servicer has bean terminated as Primary Servicer under this Agreement
and the Pooling and Servicing Agreement.
Primary Servicer shall have the benefit and shall retain all interest
and income earned on the Primary Servicer Collection Account for the Mortgage
Loans to the extent provided in Section 2.1(e) and on the escrow accounts to the
extent provided in Section 2.1(f). If Primary Servicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If any Mortgage Loan becomes a
Specially Serviced Mortgage Loan, Primary Servicer shall be entitled to collect
all such interest and income that accrues through the date of the applicable
Servicing Transfer Event. The right to retain such interest and income shall
resume if such Mortgage Loan becomes a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees Set forth in the Task Description and Exhibit B-6. The Primary
Servicer shall not be entitled to receive any default interest or late fees
collected from the Mortgagor, and the Primary Servicer shall promptly, upon
collection of such amounts, forward such interest and fees to the Master
Servicer in accordance with the Payment and Collection Description. Primary
Servicer may waive the right to collect a fee or portion of a fee to which it is
entitled under this Agreement but may not waive or otherwise affect the rights
of other parties to any other fees or portions of fees to which Primary Servicer
is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar
8
internal costs and expenses, and Primary Servicer shall be required to pay all
expenses that it incurs in the administration of this Agreement (but not those
incurred at the direction or request of Master Servicer or a third party which
direction or request requires the performance of a task or obligation not
contemplated of Primary Servicer under this Agreement) and shall not be entitled
to reimbursement of such costs and expenses, except (1) as may be specifically
provided in this Agreement or (2) to the extent expenses are reimbursable by a
Mortgagor under the applicable mortgage loan documents and the Mortgagor makes
such reimbursement.
D. PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES. The Primary
Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
____ of the Pooling and Servicing Agreement; provided, however, that references
therein to the Master Servicer shall be deemed to be references to the Primary
Servicer and references to the Trustee shall be deemed references to the Master
Servicer.
LXVII.
DOCUMENTS AND OTHER MATTERS
A. SEGREGATION OF LOAN DOCUMENTS. The Primary Servicer shall segregate
the Primary Servicer Servicing Documents related to the Mortgage Loans from all
other assets of the Primary Servicer and, upon request, forward to the Master
Servicer copies of such documents or originals of such documents if in the
possession of Primary Servicer and not part of the Mortgage File forwarded to
the Trustee.
B. ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION. The Primary
Servicer shall make available to the Master Servicer or any Successor Primary
Servicer, at a reasonable time, such information as the Master Servicer or such
Successor Primary Servicer shall reasonably request in writing and shall make
available to the Master Servicer or any Successor Primary Servicer or Persons
designated by the Master Servicer or such Successor Primary Servicer such
documents as the Master Servicer shall reasonably request in writing. To the
extent the Primary Servicer possesses the information described in Section
8.15(b) of the Pooling and Servicing Agreement, the Primary Servicer shall
afford access to that information to those Persons identified in such Section
that are entitled to such access from the Master Servicer. The Master Servicer
shall make available to the Primary Servicer, at a reasonable time, such
information as the Primary Servicer shall reasonably request in writing in
connection with the performance of the Services and, subject to the terms and
conditions of Section 8.15(b) of the Pooling and Servicing Agreement, shall make
available to the Primary Servicer or Persons designated by the Primary Servicer
such documents related to the Mortgage Loans and the Servicing of the Mortgage
Loans as the Primary Servicer shall reasonably request in writing.
LXVIII.
MASTER SERVICER ASSISTANCE
A. MASTER SERVICER ASSISTANCE.
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1. THE MASTER SERVICER SHALL MAKE REASONABLE EFFORTS TO DO ANY AND ALL
THINGS REASONABLY REQUESTED BY THE PRIMARY SERVICER TO ENABLE THE PRIMARY
SERVICER TO RENDER THE SERVICES, INCLUDING, WITHOUT LIMITATION, DELIVERING TO
THE TRUSTEE ANY RECEIPTS OR OTHER DOCUMENTATION THAT THE TRUSTEE MAY REQUIRE TO
ALLOW IT TO RELEASE ANY MORTGAGE FILES OR DOCUMENTS CONTAINED THEREIN OR
ACQUIRED IN RESPECT THEREOF REQUESTED BY THE PRIMARY SERVICER. NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY (INCLUDING ANY CONTRARY
PROVISION OF EXHIBIT B-5), THE PRIMARY SERVICER SHALL DO ANY AND ALL THINGS
REASONABLY REQUESTED BY THE MASTER SERVICER TO ENABLE THE MASTER SERVICER TO
COMPLY WITH ITS OBLIGATIONS UNDER THE POOLING AND SERVICING AGREEMENT. BEFORE
THE MASTER SERVICER RELEASES ALL OR ANY PORTION OF ANY MORTGAGE FILE OR DOCUMENT
CONTAINED THEREIN OR ACQUIRED IN RESPECT THEREOF TO THE PRIMARY SERVICER, THE
MASTER SERVICER MAY REQUIRE THE PRIMARY SERVICER TO EXECUTE A RECEIPT THEREFOR
OR, IN THE EVENT OF A MORTGAGE LOAN THAT HAS BEEN REPAID IN FULL, A CERTIFICATE
WITH RESPECT TO THE PAYMENT IN FULL OF THE RELATED MORTGAGE LOAN.
2. THE MASTER SERVICER SHALL DELIVER TO THE PRIMARY SERVICER THE POWER
OF ATTORNEY ON OR BEFORE THE CLOSING DATE. IF REQUIRED IN CONNECTION WITH THE
PROVISION OF THE SERVICES, THE MASTER SERVICER SHALL FURNISH, OR CAUSE TO BE
FURNISHED, TO THE PRIMARY SERVICER, UPON REQUEST, ANY POWERS OF ATTORNEY OF THE
MASTER SERVICER OR THE TRUSTEE, EMPOWERING THE PRIMARY SERVICER TO TAKE SUCH
ACTIONS AS IT DETERMINES TO BE REASONABLY NECESSARY TO COMPLY WITH ITS SERVICING
DUTIES HEREUNDER OR TO ENABLE THE PRIMARY SERVICER TO SERVICE AND ADMINISTER THE
MORTGAGE LOANS AND CARRY OUT ITS DUTIES HEREUNDER, IN EACH CASE IN ACCORDANCE
WITH THE SERVICING STANDARD AND THE TERMS OF THIS AGREEMENT. THE PRIMARY
SERVICER HEREBY AGREES TO INDEMNIFY THE MASTER SERVICER AND THE TRUSTEE FROM ANY
LOSS, DAMAGE, EXPENSE OR CLAIM RELATING TO MISUSE OR WRONGFUL USE OF ANY SUCH
POWER OF ATTORNEY.
B. SPECIALLY SERVICED MORTGAGE LOANS. The Primary Servicer shall
promptly notify the Master Servicer and the Special Servicer, with respect to
each Specially Serviced Mortgage Loan, of any questions, complaints, legal
notices, or other communications relating to the foreclosure or default of such
loans or bankruptcy proceedings of a Mortgagor that are received by the Primary
Servicer and such other matters as would, consistent with the Servicing
Standard, require notification to the owner or the servicer of the Mortgage
Loan. The Master Servicer shall notify the Primary Servicer of any Specially
Serviced Mortgage Loan becoming a Rehabilitated Mortgage Loan promptly following
the Master Servicer's receipt of notice to such effect from the Special Servicer
and shall request, upon request by the Primary Servicer, from the Special
Servicer copies of all relevant documents received by the Special Servicer
during the time that such Mortgage Loan was a Specially Serviced Mortgage Loan
and deliver to the Primary Servicer such documents promptly following the Master
Servicer's receipt thereof, together with any relevant documents received by the
Master Servicer (other than from
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the Primary Servicer) during the time that such Mortgage Loan was a Specially
Serviced Mortgage Loan.
LXIX.
ADDITIONAL PRIMARY SERVICER COVENANTS
A. ADDITIONAL NOTICES. The Primary Servicer shall promptly notify the
Master Servicer of any significant events which become known to Primary Servicer
affecting the Mortgage Loans, the related Mortgagor or related Mortgaged
Property, such as a payment default, a bankruptcy, a judicial lien or casualty
event, and the Primary Servicer shall also promptly advise the Master Servicer
of all material collection and customer service issues and, if requested, shall
furnish the Master Servicer with copies of any correspondence or other documents
in the possession of the Primary Servicer related to any such matter. If
litigation is instituted with respect to a Mortgage Loan, the Primary Servicer,
if aware of such litigation, shall notify the Master Servicer immediately as to
the status of the litigation related to such Mortgage Loan and shall, when
reasonably required or requested by the Master Servicer, provide to the Master
Servicer copies of all pertinent information in the Primary Servicer's
possession related to such litigation, including, without limitation, copies of
related Servicing Documents.
B. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The Primary Servicer
shall deliver to the Master Servicer on or before March 15 of each year,
commencing in the calendar year immediately following the calendar year in which
the Closing Date occurs, an Officer's Certificate of a Primary Servicing Officer
certifying that, with respect to the period ending on the preceding December 31,
(i) such Primary Servicing Officer has reviewed the activities of the Primary
Servicer during the preceding calendar year or portion thereof and its
performance under this Agreement has been made under such officer's supervision
and (ii) to the best of such Primary Servicing Officer's knowledge, based on
such review, the Primary Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such duties, responsibilities or obligations, specifying each such default known
to such Primary Servicing Officer and the nature and status thereof.
C. ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. Not later than
March 15 of each year (or March 14 if a leap year), commencing in the calendar
year immediately following the calendar year in which the Closing Date occurs,
the Primary Servicer at its own expense shall cause a firm of nationally
recognized Independent public accountants (who may also render other services to
the Primary Servicer) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Master Servicer to the effect that (i) such firm has obtained a letter of
representations regarding certain matters from the management of the Primary
Servicer, which includes an assertion that the Primary Servicer has complied
with certain minimum mortgage loan servicing standards (to the extent applicable
to commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the
11
American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. If the same entity acts as Primary
Servicer hereunder and Special Servicer under the Pooling and Servicing
Agreement, the Accountant's Statement may be delivered as part of a single
statement.
D. FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY.
1. THE PRIMARY SERVICER, AT ITS OWN EXPENSE, SHALL MAINTAIN IN EFFECT
A FIDELITY BOND (THE "PRIMARY SERVICER FIDELITY BOND") AND AN ERRORS AND
OMISSIONS POLICY (THE "PRIMARY SERVICER ERRORS AND OMISSIONS INSURANCE POLICY")
WITH A QUALIFIED INSURER, NAMING THE MASTER SERVICER AS CERTIFICATEHOLDER,
AFFORDING COVERAGE FOR ALL DIRECTORS, OFFICERS AND EMPLOYEES (IT BEING
ACKNOWLEDGED THAT A "QUALIFIED INSURER" SHALL FOR THIS PURPOSE INCLUDE ANY
ENTITY THAT SATISFIES ALL OF THE CRITERIA, OTHER THAN THE RATINGS CRITERIA, SET
FORTH IN THE DEFINITION OF "QUALIFIED INSURER" AND WHOSE OBLIGATIONS UNDER THE
RELATED PRIMARY SERVICER FIDELITY BOND OR PRIMARY SERVICER ERRORS AND OMISSIONS
INSURANCE POLICY ARE GUARANTEED OR BACKED BY AN ENTITY THAT SATISFIES THE
RATINGS CRITERIA SET FORTH IN THE DEFINITION OF "QUALIFIED INSURER" (CONSTRUED
AS IF SUCH ENTITY WERE AN INSURER REFERRED TO THEREIN). THE PRIMARY SERVICER
ERRORS AND OMISSIONS INSURANCE POLICY AND PRIMARY SERVICER FIDELITY BOND SHALL
BE IN SUCH FORM AND AMOUNT THAT WOULD SATISFY THE REQUIREMENTS FOR SUCH POLICIES
AS THE MASTER SERVICER MUST SATISFY AS SET FORTH IN SECTION 8.2 OF THE POOLING
AND SERVICING AGREEMENT. THE PRIMARY SERVICER SHALL FURNISH TO THE MASTER
SERVICER, NOT LATER THAN THIRTY (30) DAYS AFTER THE CLOSING DATE, EVIDENCE
(WHICH EVIDENCE MAY CONSIST OF A CERTIFICATE FROM THE APPLICABLE INSURANCE
COMPANY OR COMPANIES) OF THE PRIMARY SERVICER'S COMPLIANCE WITH THIS SECTION
5.4(A).
2. THE PRIMARY SERVICER SHALL PROMPTLY REPORT IN WRITING TO THE MASTER
SERVICER ANY MATERIAL ADVERSE CHANGES THAT MAY OCCUR IN THE PRIMARY SERVICER
FIDELITY BOND OR THE PRIMARY SERVICER ERRORS AND OMISSIONS INSURANCE POLICY AND
SHALL FURNISH TO THE MASTER SERVICER UPON WRITTEN REQUEST COPIES OF ALL
CERTIFICATES FROM THE APPLICABLE INSURANCE COMPANY OR COMPANIES EVIDENCING THAT
SUCH BOND AND INSURANCE POLICY ARE IN FULL FORCE AND EFFECT. IF A BOND OR
INSURANCE CLAIM REPORT IS FILED WITH ANY OF THE PRIMARY SERVICER'S BONDING
COMPANIES OR INSURERS RELATING TO THE MORTGAGE LOANS OR THE SERVICING THEREOF, A
COPY OF SUCH REPORT (WHICH REPORT MAY OMIT ANY REFERENCES TO INDIVIDUALS
SUSPECTED OF SUCH EMBEZZLEMENT, FRAUD OR IRREGULARITIES OF OPERATION) SHALL BE
PROMPTLY FURNISHED TO THE MASTER SERVICER.
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E. PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED INFORMATION.
The Primary Servicer shall deliver to the Master Servicer, within 120 days after
the end of its fiscal year, a copy of its annual financial statements, such
financial statements to be audited if then customarily audited, and with respect
to any unaudited financial statements provided by the Primary Servicer, which
financial statements shall be certified by the Primary Servicer's chief
financial officer to be true, correct and complete. The Primary Servicer shall
notify the Master Servicer, as of the Closing Date, of the Primary Servicer's
fiscal year and shall notify the Master Servicer promptly after any change
thereof.
F. NO ADVANCING. Under no circumstance shall the Primary Servicer make
or have an obligation to make any Advances. The Primary Servicer will promptly
notify the Master Servicer in accordance with the Task Description if the
Primary Servicer believes that a Servicing Advance is or will be required to be
made with respect to any Mortgage Loan.
G. INSPECTION RIGHTS. The Primary Servicer shall afford the Master
Servicer and the Trustee, upon reasonable notice and during normal business
hours, reasonable access to all records, information, books and documentation
regarding the Mortgage Loans, and all accounts, insurance policies and other
relevant matters relating to this Agreement, and access to Primary Servicing
Officers of the Primary Servicer responsible for its obligations hereunder.
Without limiting the foregoing, the Master Servicer may visit the offices of the
Primary Servicer no more than once annually (including visits under similar
primary servicing agreements between the Master Servicer and the Primary
Servicer for commercial mortgage loans) for the purpose of reviewing the Primary
Servicer's compliance with this Agreement and such similar agreements, upon
reasonable notice and during normal business hours, and Primary Servicer will
cooperate with Master Servicer to provide Master Servicer with the information
that Master Servicer reasonably requests to permit such review.
H. AUTHORIZED OFFICER. Primary Servicer shall provide Master Servicer
promptly with a written list of authorized Primary Servicing Officers of Primary
Servicer, which may be amended from time to time by written notice front Primary
Servicer to Master Servicer; provided, however, that such list shall denote one
principal Primary Servicing Officer responsible for the Primary Servicer's
obligations under this Agreement.
I. ADDITIONAL REPORTS. Primary Servicer shall produce such additional
written reports with respect to the Mortgage Loans as the Master Servicer may
from time to time reasonably request in order to comply with its obligations
under the Pooling and Servicing Agreement, provided that if any Person is
requesting the report from the Master Servicer pursuant to the Pooling and
Servicing Agreement, such report constitutes an ad-hoc non-standard report, no
additional recalculation or combinations of the information provided by the
Primary Servicer are required for the Master Servicer to produce such report and
the Master Servicer receives a fee for the production of such report, then the
Master Servicer shall pay such fee to the Primary Servicer.
J. CONSENTS. Proposed modifications, waivers, consents or amendments
shall be handled as set forth in Exhibit B-6.
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X. XXXXXXXX-XXXXX BACKUP CERTIFICATION. The Primary Servicer shall
execute and deliver to the Master Servicer a backup certification substantially
in the form set forth in Exhibit D hereto ("Backup Certification") no later than
March 25 of each year in which the Master Servicer becomes subject to a
certification obligation under the Pooling and Servicing Agreement in connection
with the certification requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated by the Commission thereunder (including any
interpretations thereof by the staff of the Commission).
L. QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION. The
Primary Servicer shall execute and deliver to the Master Servicer a
certification substantially in the form set forth in Exhibit E hereto no later
than the 15th calendar day of each February, May, August and November,
commencing in May 20__ (the date of such delivery, in each case, a
"Reconciliation Certification Date), with respect to the calendar quarters
ending the immediately preceding December 31st, March 31st, June 30th and
September 30th, respectively.
LXX.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
A. PRIMARY SERVICER DEFAULT. Each of the following events shall
constitute a "Primary Servicer Default" hereunder:
A. ANY FAILURE BY THE PRIMARY SERVICER TO REMIT TO THE MASTER SERVICER
WHEN DUE ANY AMOUNT REQUIRED TO BE REMITTED UNDER THIS AGREEMENT AND THE
CONTINUATION OF SUCH FAILURE FOR A PERIOD OF ONE BUSINESS DAY; OR
B. ANY FAILURE BY THE PRIMARY SERVICER DULY TO OBSERVE OR PERFORM IN
ANY MATERIAL RESPECT ANY OF THE COVENANTS OR AGREEMENTS ON THE PART OF THE
PRIMARY SERVICER CONTAINED IN THIS AGREEMENT, WHICH FAILURE CONTINUES
UNREMEDIED FOR A PERIOD OF TWENTY-FIVE (25) DAYS AFTER THE DATE ON WHICH
WRITTEN NOTICE OF SUCH FAILURE, REQUIRING THE SAME TO BE REMEDIED, SHALL
HAVE BEEN GIVEN TO THE PRIMARY SERVICER BY THE MASTER SERVICER; PROVIDED,
HOWEVER, THAT TO THE EXTENT THE MASTER SERVICER DETERMINES, IN ITS
REASONABLE DISCRETION, THAT THE PRIMARY SERVICER IS IN GOOD FAITH
ATTEMPTING TO REMEDY SUCH FAILURE AND THE CERTIFICATEHOLDERS SHALL NOT BE
MATERIALLY AND ADVERSELY AFFECTED THEREBY, SUCH CURE PERIOD MAY BE EXTENDED
TO THE EXTENT NECESSARY TO PERMIT THE PRIMARY SERVICER TO CURE SUCH
FAILURE; PROVIDED, FURTHER, THAT SUCH CURE PERIOD MAY NOT EXCEED SIXTY (60)
DAYS; AND; PROVIDED, FURTHER THAT IF SUCH FAILURE TO PERFORM ON THE PART OF
THE PRIMARY SERVICER RESULTS IN AN EVENT OF DEFAULT BY THE MASTER
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SERVICER UNDER THE POOLING AND SERVICING AGREEMENT, THEN THE CURE PERIODS
DESCRIBED IN THIS SECTION 6.1(II) SHALL NOT APPLY; OR
C. ANY BREACH OF THE REPRESENTATIONS AND WARRANTIES MADE PURSUANT TO
SECTION 2.4 HEREOF THAT MATERIALLY AND ADVERSELY AFFECTS THE INTEREST OF
THE MASTER SERVICER AND THAT CONTINUES UNREMEDIED FOR A PERIOD OF
TWENTY-FIVE (25) DAYS AFTER THE DATE ON WHICH WRITTEN NOTICE OF SUCH
BREACH, REQUIRING THE SAME TO BE REMEDIED, SHALL HAVE BEEN GIVEN BY THE
MASTER SERVICER TO PRIMARY SERVICER; PROVIDED, HOWEVER, THAT TO THE EXTENT
THE MASTER SERVICER DETERMINES IN ITS REASONABLE DISCRETION THAT THE
PRIMARY SERVICER IS IN GOOD FAITH ATTEMPTING TO REMEDY SUCH BREACH AND THE
CERTIFICATEHOLDERS SHALL NOT BE MATERIALLY AND ADVERSELY AFFECTED THEREBY,
SUCH CURE PERIOD MAY BE EXTENDED TO THE EXTENT NECESSARY TO PERMIT THE
PRIMARY SERVICER TO CURE SUCH BREACH; PROVIDED, HOWEVER, THAT SUCH CURE
PERIOD MAY NOT EXCEED SIXTY (60) DAYS; AND PROVIDED, FURTHER, THAT IF SUCH
FAILURE TO PERFORM ON THE PART OF THE PRIMARY SERVICER RESULTS IN AN EVENT
OF DEFAULT (OR AN EVENT THAT WITH NOTICE OR THE PASSAGE OF TIME WOULD
CONSTITUTE SUCH AN EVENT OF DEFAULT) BY THE MASTER SERVICER UNDER THE
POOLING AND SERVICING AGREEMENT, THEN THE CURE PERIODS DESCRIBED IN THIS
SECTION 6.1(III) SHALL NOT APPLY; 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
FOR THE APPOINTMENT OF A CONSERVATOR, RECEIVER, LIQUIDATOR, TRUSTEE OR
SIMILAR OFFICIAL IN ANY BANKRUPTCY, INSOLVENCY, READJUSTMENT OF DEBT,
MARSHALLING OF ASSETS AND LIABILITIES OR SIMILAR PROCEEDINGS, OR FOR THE
WINDING-UP OR LIQUIDATION OF ITS AFFAIRS, SHALL HAVE BEEN ENTERED AGAINST
THE PRIMARY SERVICER AND SUCH DECREE OR ORDER SHALL HAVE REMAINED IN FORCE
UNDISCHARGED OR UNSTAYED FOR A PERIOD OF SIXTY (60) DAYS; OR
E. THE PRIMARY SERVICER SHALL CONSENT TO THE APPOINTMENT OF A
CONSERVATOR, RECEIVER, LIQUIDATOR, TRUSTEE OR SIMILAR OFFICIAL IN ANY
BANKRUPTCY, INSOLVENCY, READJUSTMENT OF DEBT, MARSHALLING OF ASSETS AND
LIABILITIES OR SIMILAR PROCEEDINGS OR OF OR RELATING TO ALL OR
SUBSTANTIALLY ALL OF ITS PROPERTY; OR
F. THE PRIMARY SERVICER SHALL ADMIT IN WRITING ITS INABILITY TO PAY
ITS DEBTS GENERALLY AS THEY BECOME DUE, FILE A PETITION TO TAKE ADVANTAGE
OF ANY APPLICABLE BANKRUPTCY,
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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
G. ANY OTHER EVENT CAUSED BY THE PRIMARY SERVICER WHICH CREATES AN
EVENT OF DEFAULT (OR AN EVENT THAT WITH NOTICE OR THE PASSAGE TIME WOULD
CONSTITUTE SUCH AN EVENT OF DEFAULT) OF THE MASTER SERVICER UNDER THE
POOLING AND SERVICING AGREEMENT.
Primary Servicer agrees to give prompt written notice to Master
Servicer upon the occurrence of any Primary Servicer Default.
If the Primary Servicer fails to remit to the Master Servicer when due
any amount required to be remitted under this Agreement (whether or not such
failure constitutes a Primary Servicer Default), then interest shall accrue on
the amount that was required to be remitted, and the Primary Servicer shall
promptly pay such interest to the Master Servicer, at a per annum rate equal to
the Advance Rate from and including the date when such remittance was required
to be made to but excluding the day when such remittance is actually made.
B. TERMINATION.
1. THE OBLIGATIONS AND RESPONSIBILITIES OF THE PRIMARY SERVICER AS
CREATED HEREBY (OTHER THAN AS EXPRESSLY PROVIDED HEREIN) SHALL TERMINATE UPON
THE EARLIER TO OCCUR OF (I) THE RECEIPT BY THE PRIMARY SERVICER OF THE MASTER
SERVICER'S WRITTEN NOTICE OF SUCH TERMINATION DELIVERED AT THE MASTER SERVICER'S
OPTION FOLLOWING THE OCCURRENCE OF A PRIMARY SERVICER DEFAULT OR (II) THE FINAL
PAYMENT OR OTHER LIQUIDATION OF THE LAST MORTGAGE LOAN REMAINING OUTSTANDING
(THE "PRIMARY SERVICING TERMINATION DATE"). FROM AND AFTER THE PRIMARY SERVICING
TERMINATION DATE, THE PRIMARY SERVICER SHALL, IF APPLICABLE, CONTINUE TO
COOPERATE IN THE TRANSFER OF PRIMARY SERVICING, INCLUDING THE DELIVERY OF FILES
AND TRANSFER OF ACCOUNTS AS CONTEMPLATED HEREBY BUT SHALL HAVE NO FURTHER
OBLIGATIONS UNDER THIS AGREEMENT.
2. WITHOUT LIMITING THE FOREGOING, THE PRIMARY SERVICER AGREES THAT
THE RIGHTS AND DUTIES OF THE MASTER SERVICER UNDER THIS AGREEMENT AND THE
POOLING AND SERVICING AGREEMENT MAY BE ASSUMED BY A SUCCESSOR MASTER SERVICER OR
THE TRUSTEE UPON A TERMINATION OF THE MASTER SERVICER'S SERVICING RIGHTS
PURSUANT TO THE POOLING AND SERVICING AGREEMENT.
3. PRIMARY SERVICER'S RIGHTS AND OBLIGATIONS SHALL EXPRESSLY SURVIVE A
TERMINATION OF MASTER SERVICER'S SERVICING RIGHTS PURSUANT TO THE POOLING AND
SERVICING AGREEMENT (EXCEPT A
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TERMINATION OF MASTER SERVICER CAUSED BY A PRIMARY SERVICER DEFAULT). IN THE
EVENT OF SUCH A TERMINATION, ANY SUCCESSOR MASTER SERVICER OR THE TRUSTEE (IF IT
ASSUMES THE SERVICING OBLIGATIONS OF THE MASTER SERVICER) SHALL BE DEEMED TO
AUTOMATICALLY HAVE ASSUMED AND AGREED TO THIS AGREEMENT WITHOUT FURTHER ACTION
UPON BECOMING THE SUCCESSOR MASTER SERVICER.
4. UPON THE REQUEST OF PRIMARY SERVICER, THE SUCCESSOR MASTER SERVICER
OR TRUSTEE, AS APPLICABLE, SHALL CONFIRM TO PRIMARY SERVICER IN WRITING THAT
THIS AGREEMENT REMAINS IN FULL FORCE AND EFFECT. UPON THE REQUEST OF THE
SUCCESSOR MASTER SERVICER OR TRUSTEE, PRIMARY SERVICER SHALL CONFIRM TO THE
SUCCESSOR MASTER SERVICER OR TRUSTEE, AS APPLICABLE, IN WRITING THAT THIS
AGREEMENT REMAINS IN FULL FORCE AND EFFECT.
5. THE MASTER SERVICER'S REIMBURSEMENT OBLIGATIONS TO THE PRIMARY
SERVICER HEREUNDER AND THE PRIMARY SERVICER'S ENTITLEMENT TO PAYMENT OF THE
PRIMARY SERVICING FEE HEREUNDER SHALL SURVIVE THE PRIMARY SERVICING TERMINATION
DATE, BUT ONLY TO THE EXTENT SUCH REIMBURSEMENT OR SUCH PRIMARY SERVICING FEE
RELATES TO A PERIOD PRIOR TO THE TERMINATION OF ALL OF THE PRIMARY SERVICER'S
OBLIGATIONS HEREUNDER.
6. THE RIGHTS OF MASTER SERVICER TO TERMINATE PRIMARY SERVICER UPON
THE OCCURRENCE OF A PRIMARY SERVICER DEFAULT SHALL BE IN ADDITION TO ANY OTHER
RIGHTS MASTER SERVICER MAY HAVE AT LAW OR IN EQUITY, INCLUDING INJUNCTIVE RELIEF
OR SPECIFIC PERFORMANCE.
C. ASSIGNMENT BY PRIMARY SERVICER. This Agreement and the rights and
benefits hereunder of the Primary Servicer shall not be assignable, and the
duties and obligations hereunder of such party shall not be delegable; provided,
however, that (i) the Primary Servicer may assign, sell or transfer its rights
and duties under this Agreement (in whole and not in part) to a parent company
of Primary Servicer or a wholly-owned subsidiary or affiliate of such party, or
a successor by merger of Primary Servicer; (ii) the Primary Servicer shall be
entitled to employ subcontractors to the extent provided in Article VII and
(iii) the Primary Servicer shall be entitled to assign, sell or transfer its
rights and duties under this Agreement (in whole and not in part), provided that
(in the case of this subclause (iii) either (A) the Master Servicer has approved
the proposed successor, such approval not to be unreasonably withheld, or (B)
the proposed successor to the Primary Servicer then: (a) is rated "above
average" or the equivalent by each Rating Agency, (b) has at least $15,000,000
in total assets and (c) is appropriately qualified to do business and/or is
licensed in all jurisdictions where such qualification and/or licensing is
necessary to service the Mortgage Loans. Any such assignment under this Section
6.3 (other than one described in clause (ii) above) shall (i) not be effective
until such successor Primary Servicer enters into a written agreement
satisfactory to Master Servicer agreeing to be bound by the terms and provisions
of this Agreement (but not altering the obligations under this Agreement); and
(ii) not relieve the assigning Primary Servicer of any duties or liabilities
arising or incurred prior to such assignment. Any costs or expenses incurred
17
in connection with such assignment shall be payable by the assigning Primary
Servicer. Any assignment or delegation or attempted assignment or delegation in
contravention of this Agreement shall be null and void.
D. RESIGNATION OF PRIMARY SERVICER. The Primary Servicer shall not
resign from the obligations and duties hereby imposed on it (except as otherwise
permitted under Section 6.3) unless it determines that the Primary Servicer's
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it. Any such determination permitting the resignation of the Primary
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Master Servicer. No such resignation shall become effective until a
successor servicer designated by the Master Servicer shall have assumed the
Primary Servicer's responsibilities and obligations under this Agreement.
E. POST-TERMINATION OBLIGATIONS.
1. IN THE EVENT OF A TERMINATION OF THE PRIMARY SERVICER'S RIGHTS AND
DUTIES HEREUNDER DUE TO A PRIMARY SERVICER DEFAULT, ANY ASSIGNMENT OF THE
PRIMARY SERVICER'S RIGHTS AND DUTIES HEREUNDER PERMITTED UNDER SECTION 6.3 OR
ANY RESIGNATION OF THE PRIMARY SERVICER FROM ITS RIGHTS AND DUTIES HEREUNDER
PERMITTED UNDER SECTION 6.4, AS THE CASE MAY BE, THE PRIMARY SERVICER SHALL
PROMPTLY (I) DELIVER THE SERVICING DOCUMENTS TO THE MASTER SERVICER OR A
SUCCESSOR PRIMARY SERVICER, AS DIRECTED BY THE MASTER SERVICER, (II) REMIT TO OR
AT THE DIRECTION OF THE MASTER SERVICER, BY WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FUNDS, ALL CASH HELD BY THE PRIMARY SERVICER WITH RESPECT TO THE
MORTGAGE LOANS (OTHER THAN ANY PORTION OF SUCH CASH REPRESENTING PRIMARY
SERVICING COMPENSATION TO WHICH THE PRIMARY SERVICER IS ENTITLED PURSUANT TO
SECTION 2.3), AND (III) IF SO REQUESTED BY THE MASTER SERVICER, ASSIGN TO THE
MASTER SERVICER OR A SUCCESSOR PRIMARY SERVICER, AS DIRECTED BY THE MASTER
SERVICER, AND IN SUCH EVENT THE MASTER SERVICER SHALL ASSUME, OR CAUSE THE
SUCCESSOR PRIMARY SERVICER TO ASSUME, ALL SERVICE CONTRACTS RELATED TO THE
MORTGAGE LOANS TRANSFERRED THEREON BUT ONLY TO THE EXTENT SUCH CONTRACTS ARE
ASSIGNABLE AND THE REQUIRED CONSENTS (IF ANY) TO SUCH ASSIGNMENTS HAVE BEEN
OBTAINED. THE PRIMARY SERVICER SHALL USE ALL REASONABLE EFFORTS TO OBTAIN THE
CONSENTS REQUIRED TO EFFECT SUCH ASSIGNMENTS.
2. ON AND AFTER THE PRIMARY SERVICING TERMINATION DATE, THE DATE OF
ANY ASSIGNMENT OF THE PRIMARY SERVICER'S RIGHTS AND DUTIES HEREUNDER IN
ACCORDANCE WITH SECTION 6.3 OR THE DATE OF ANY RESIGNATION BY THE PRIMARY
SERVICER FROM ITS RIGHTS AND DUTIES HEREUNDER IN ACCORDANCE WITH SECTION 6.4, AS
THE CASE MAY BE, THE PRIMARY SERVICER SHALL PROMPTLY ENDORSE AND SEND TO OR AT
THE DIRECTION OF THE MASTER SERVICER VIA OVERNIGHT MAIL OR DELIVERY
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SERVICE ANY CHECKS OR OTHER FUNDS IN RESPECT OF THE MORTGAGE LOANS WHICH ARE
RECEIVED BY THE PRIMARY SERVICER.
3. THE PRIMARY SERVICER SHALL PROVIDE TO THE MASTER SERVICER PROMPTLY
(BUT IN NO EVENT LATER THAN TEN (10) BUSINESS DAYS) AFTER THE PRIMARY SERVICING
TERMINATION DATE, THE DATE OF ANY ASSIGNMENT OF THE PRIMARY SERVICER'S RIGHTS
AND DUTIES HEREUNDER IN ACCORDANCE WITH SECTION 6.3 OR THE DATE OF ANY
RESIGNATION BY THE PRIMARY SERVICER FROM ITS RIGHTS AND DUTIES HEREUNDER IN
ACCORDANCE WITH SECTION 6.4, AS THE CASE MAY BE, THE FOLLOWING INFORMATION, IN
EACH CASE AS OF SUCH DATE: (A) A LEDGER ACCOUNTING ITEMIZING THE DATES AND
AMOUNTS OF ALL PAYMENTS MADE, RECEIVED OR APPLIED BY THE PRIMARY SERVICER WITH
REGARD TO THE MORTGAGE LOANS, FURTHER ITEMIZING PRINCIPAL AND INTEREST PAYMENTS,
TAX PAYMENTS, SPECIAL ASSESSMENTS, HAZARD INSURANCE, MORTGAGE INSURANCE
PREMIUMS, GROUND RENTS, IF ANY, AND ALL OTHER PAYMENTS AND (B) A CURRENT TRIAL
BALANCE FOR SUCH MORTGAGE LOAN.
4. ON A DATE TO BE AGREED UPON BY THE PRIMARY SERVICER AND THE MASTER
SERVICER, BUT NOT LATER THAN THE BUSINESS AY FOLLOWING THE PRIMARY SERVICING
TERMINATION DATE, THE DATE OF ANY ASSIGNMENT OF THE PRIMARY SERVICER'S RIGHTS
AND DUTIES HEREUNDER IN ACCORDANCE WITH SECTION 6.3 OR THE DATE OF ANY
RESIGNATION BY THE PRIMARY SERVICER FROM ITS RIGHTS AND DUTIES HEREUNDER IN
ACCORDANCE WITH SECTION 6.4, AS THE CASE MAY BE, THE PRIMARY SERVICER SHALL
COMMENCE AND CONTINUE DILIGENTLY TO COMPLETION AT ITS OWN EXPENSE, TO NOTIFY THE
MORTGAGORS UNDER THE MORTGAGE LOANS OF THE ADDRESS TO WHICH PAYMENTS ON SUCH
MORTGAGE LOANS SHOULD BE SENT AFTER THE PRIMARY SERVICING TERMINATION DATE, THE
DATE OF ANY ASSIGNMENT OF THE PRIMARY SERVICER'S RIGHTS AND DUTIES HEREUNDER IN
ACCORDANCE WITH SECTION 6.3 OR THE DATE OF ANY RESIGNATION BY THE PRIMARY
SERVICER FROM ITS RIGHTS AND DUTIES HEREUNDER IN ACCORDANCE WITH SECTION 6.4, AS
THE CASE MAY BE; PROVIDED, HOWEVER, THAT IN ANY EVENT, PRIMARY SERVICER SHALL BE
OBLIGATED TO NOTIFY MORTGAGORS WITHIN SEVEN (7) BUSINESS DAYS FOLLOWING THE
PRIMARY SERVICING TERMINATION DATE, THE DATE OF ANY ASSIGNMENT OF THE PRIMARY
SERVICER'S RIGHTS AND DUTIES HEREUNDER IN ACCORDANCE WITH SECTION 6.3 OR THE
DATE OF ANY RESIGNATION BY THE PRIMARY SERVICER FROM ITS RIGHTS AND DUTIES
HEREUNDER IN ACCORDANCE WITH SECTION 6.4, AS THE CASE MAY BE.
5. THE PRIMARY SERVICER SHALL PROMPTLY FORWARD TO THE MASTER SERVICER,
AT THE PRIMARY SERVICER'S EXPENSE ALL MORTGAGOR CORRESPONDENCE, INSURANCE
NOTICES, TAX BILLS OR ANY OTHER CORRESPONDENCE OR DOCUMENTATION RELATED TO ANY
MORTGAGE LOAN WHICH IS RECEIVED BY THE PRIMARY SERVICER AFTER THE PRIMARY
SERVICING TERMINATION DATE, THE DATE OF ANY ASSIGNMENT OF THE
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PRIMARY SERVICER'S RIGHTS AND DUTIES HEREUNDER IN ACCORDANCE WITH SECTION 6.3 OR
THE DATE OF ANY RESIGNATION BY THE PRIMARY SERVICER FROM ITS RIGHTS AND DUTIES
HEREUNDER IN ACCORDANCE WITH SECTION 6.4, AS THE CASE MAY BE.
6. THE PRIMARY SERVICER SHALL OTHERWISE COOPERATE IN THE ORDERLY
TRANSFER OF THE SERVICING OF THE MORTGAGE LOANS AND SHALL FORWARD TO THE MASTER
SERVICER AND ANY SUCCESSOR PRIMARY SERVICER SUCH DOCUMENTS AS IT MAY RECEIVE
FROM TIME TO TIME REGARDING ANY MORTGAGE LOAN TRANSFERRED AND PROVIDE SUCH OTHER
ASSISTANCE AS MAY REASONABLY BE REQUIRED BY THE MASTER SERVICER OR ANY SUCCESSOR
PRIMARY SERVICER REGARDING SUCH TRANSFER.
7. PRIMARY SERVICER SHALL BE ENTITLED TO ALL FEES, COMPENSATION,
INTEREST AND EARNINGS ON THE MORTGAGE LOANS ACCRUED THROUGH THE DATE OF
TERMINATION OF ITS OBLIGATIONS AND RIGHTS UNDER THIS AGREEMENT.
F. ADDITIONAL TERMINATIONS. Notwithstanding any provision herein to
the contrary, this Agreement shall terminate with respect to any Mortgage Loan
if and when (i) such Mortgage Loan becomes a Specially Serviced Mortgage Loan or
an REO Mortgage Loan (provided that this Agreement shall resume as to such
Mortgage Loan if and when such Mortgage Loan becomes a Rehabilitated Mortgage
Loan) or (ii) such Mortgage Loan is sold or otherwise disposed of by or on
behalf of the Trust (which sale or disposition shall not include the
transformation of a Loan into a Defeasance Loan). In the event of such
termination, the Primary Servicer shall comply with Section 6.5 as if a Primary
Servicer Default had occurred, except that such Section shall be construed to
relate only to such Mortgage Loan and references therein to Primary Servicing
Termination Date shall be construed to mean the date of such termination, and
(ii) the Primary Servicer shall cooperate in the orderly transfer of the
servicing of such Mortgage Loan and shall forward to the Master Servicer such
documents as it may receive from time to time with respect thereto and provide
such other assistance as may reasonably be required by the Master Servicer with
respect thereto. The Primary Servicer shall be entitled to all fees,
compensation, interest and earnings on such Mortgage Loan (to which the Primary
Servicer is otherwise entitled hereunder) accrued through the date of
termination of its obligations end rights with respect to such Mortgage Loan
under this Agreement. If a Mortgage Loan subsequently becomes a Rehabilitated
Mortgage Loan, then the Primary Servicer shall promptly resume the servicing of
such Mortgage Loan in accordance with the terms hereof.
LXXI.
SUBCONTRACTORS
Without prior notice to or the prior written consent of the Master
Servicer, the Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform selected services (such as the engagement of tax
monitoring services, property inspections, etc.) in connection with Primary
Servicer's performance of the Services for the Mortgage Loans;
20
provided, however, that: the Primary Servicer shall remain fully liable at all
times for the timely performance of all Services and for all other obligations
hereunder.
LXXII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans held by the Primary
Servicer, including but not limited to the Primary Servicer Servicing Documents,
mortgage servicing documents, books, computer tapes and other documents and
records (except for microfilm records) as well as any reproductions or copies of
such records furnished for the purposes of performing Services from the Cut-Off
Date are, and shall continue at all times to be, held by the Primary Servicer
for the benefit of the Master Servicer and, unless required by applicable law,
regulation, legal process or regulatory authority, shall not be released,
disseminated or otherwise made available to third parties without the prior
written consent of the Master Servicer.
LXXIII.
INDEMNIFICATION
A. PRIMARY SERVICER'S INDEMNITY.
1. THE PRIMARY SERVICER SHALL INDEMNIFY THE MASTER SERVICER, ITS
OFFICERS, EMPLOYEES AND AGENTS AGAINST, AND HOLD THE MASTER SERVICER HARMLESS
FROM, ANY AND ALL LOSSES, LIABILITIES, EXPENSES, CLAIMS, DEMANDS, COSTS, OR
JUDGMENT OF ANY TYPE AGAINST THE MASTER SERVICER ARISING OUT OF OR RELATED TO
(I) A NEGLIGENT OR WILLFUL FAILURE OF THE PRIMARY SERVICER OR ANY PERSON HIRED
BY THE PRIMARY SERVICER TO PERFORM PROPERLY ANY OF THE SERVICES TO BE PERFORMED
BY THE PRIMARY SERVICER PURSUANT TO THE PAYMENT AND COLLECTION DESCRIPTION, THE
PAYMENT AND LOAN STATUS REPORTS AND TASK DESCRIPTION, (II) ANY FAILURE BY THE
PRIMARY SERVICER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, OR (III)
BREACH OF ANY OF THE PRIMARY SERVICER'S REPRESENTATIONS AND WARRANTIES
HEREUNDER; PROVIDED, HOWEVER, THAT THE PRIMARY SERVICER SHALL NOT BE REQUIRED TO
INDEMNIFY THE MASTER SERVICER, ITS OFFICERS, EMPLOYEES OR AGENTS AGAINST OR HOLD
THE MASTER SERVICER, ITS OFFICERS, EMPLOYEES OR AGENTS HARMLESS FROM ANY LOSSES
TO THE EXTENT THAT SUCH LOSS IS CAUSED BY THE ACTIONS OF THE MASTER SERVICER,
ITS OFFICERS, EMPLOYEES OR AGENTS IN VIOLATION OF THE MASTER SERVICER'S DUTIES
UNDER THIS AGREEMENT OR UNDER THE POOLING AND SERVICING AGREEMENT (EXCEPT TO THE
EXTENT THAT SUCH FAILURE WAS CAUSED BY THE PRIMARY SERVICER'S FAILURE TO PERFORM
ITS OBLIGATIONS HEREUNDER). THE INDEMNIFICATION PROVIDED UNDER THIS SECTION 9.1
SHALL SURVIVE THE PRIMARY SERVICING TERMINATION DATE. THE MASTER SERVICER SHALL
PROMPTLY NOTIFY THE PRIMARY SERVICER IF A CLAIM IS MADE BY A THIRD PARTY WITH
RESPECT TO THIS AGREEMENT OR THE MORTGAGE LOANS ENTITLING THE MASTER
21
SERVICER TO INDEMNIFICATION HEREUNDER. THE PRIMARY SERVICER SHALL ASSUME THE
DEFENSE OF ANY SUCH CLAIM (WITH COUNSEL REASONABLY SATISFACTORY TO THE MASTER
SERVICER) AND PAY ALL EXPENSES IN CONNECTION THEREWITH, INCLUDING COUNSEL FEES,
AND PROMPTLY PAY, DISCHARGE AND SATISFY ANY JUDGMENT OR DECREE WHICH MAY BE
ENTERED AGAINST IT OR THEM IN RESPECT OF SUCH CLAIM. ANY FAILURE TO SO NOTIFY
THE PRIMARY SERVICER SHALL NOT AFFECT ANY OF THE MASTER SERVICER'S RIGHTS TO
INDEMNIFICATION.
2. NEITHER THE PRIMARY SERVICER NOR ANY OF THE DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS OF THE PRIMARY SERVICER SHALL BE UNDER ANY LIABILITY TO THE
MASTER SERVICER, THE HOLDERS OF THE CERTIFICATES, THE DEPOSITOR, THE TRUSTEE OR
ANY OTHER PERSON FOR ANY ACTION TAKEN OR FOR REFRAINING FROM THE TAKING OF ANY
ACTION IN GOOD FAITH AND USING ITS REASONABLE BUSINESS JUDGMENT PURSUANT TO THIS
AGREEMENT, OR FOR ERRORS IN JUDGMENT; PROVIDED THAT THIS PROVISION SHALL NOT
PROTECT THE PRIMARY SERVICER OR ANY SUCH PERSON AGAINST ANY BREACH OF A
COVENANT, REPRESENTATION OR WARRANTY CONTAINED HEREIN OR ANY LIABILITY WHICH
WOULD OTHERWISE BE IMPOSED BY REASON OF WILLFUL MISFEASANCE, BAD FAITH OR
NEGLIGENCE IN ITS PERFORMANCE OF DUTIES OR BY REASON OF NEGLIGENT DISREGARD FOR
ITS OBLIGATIONS AND DUTIES UNDER THIS AGREEMENT. THE PRIMARY SERVICER AND ANY
DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE PRIMARY SERVICER MAY RELY IN GOOD
FAITH ON ANY DOCUMENT OF ANY KIND PRIMA FACIE PROPERLY EXECUTED AND SUBMITTED BY
ANY PERSON RESPECTING ANY MATTERS ARISING HEREUNDER.
B. MASTER SERVICER'S INDEMNITY.
1. MASTER SERVICER SHALL USE ALL REASONABLE EFFORTS TO OBTAIN THE
BENEFITS OF THE RIGHTS OF INDEMNIFICATION IN FAVOR OF MASTER SERVICER CONTAINED
IN THE POOLING AND SERVICING AGREEMENT ON BEHALF OF THE PRIMARY SERVICER AND THE
PRIMARY SERVICER'S AGENTS, EMPLOYEES AND SUBCONTRACTORS INSOFAR AS SUCH
INDEMNIFICATION RELATES TO LOSSES, LIABILITIES, EXPENSES, CLAIMS, DEMANDS, COSTS
OR JUDGMENTS AGAINST THE PRIMARY SERVICER ARISING OUT OF OR RELATED TO THE
PRIMARY SERVICER'S PERFORMANCE HEREUNDER. TO THE EXTENT THAT THE MASTER SERVICER
IS NOT ENTITLED TO INDEMNIFICATION UNDER THE POOLING AND SERVICING AGREEMENT,
THE MASTER SERVICER SHALL INDEMNIFY THE PRIMARY SERVICER FOR ALL LOSSES,
LIABILITIES, EXPENSES, CLAIMS, DEMANDS, COSTS OR JUDGMENTS AGAINST THE PRIMARY
SERVICER ARISING OUT OF THE MASTER SERVICER'S FAILURE TO PERFORM ITS OBLIGATIONS
UNDER SECTIONS 4.1 AND 4.2 HEREOF.
2. THE MASTER SERVICER SHALL INDEMNIFY THE PRIMARY SERVICER, ITS
OFFICERS, EMPLOYEES AND AGENTS AGAINST, AND HOLD THE PRIMARY SERVICER HARMLESS
FROM, ANY AND ALL LOSSES, LIABILITIES,
22
EXPENSES, CLAIMS, DEMANDS, COSTS, OR JUDGMENT OF ANY TYPE AGAINST THE PRIMARY
SERVICER ARISING OUT OF OR RELATED TO ANY FAILURE BY THE MASTER SERVICER TO
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR THE POOLING AND SERVICING
AGREEMENT; PROVIDED, HOWEVER, THAT THE MASTER SERVICER SHALL NOT BE REQUIRED TO
INDEMNIFY THE PRIMARY SERVICER, ITS OFFICERS, EMPLOYEES OR AGENTS AGAINST OR
HOLD THE PRIMARY SERVICER, ITS OFFICERS, EMPLOYEES OR AGENTS HARMLESS FROM ANY
LOSSES TO THE EXTENT THAT SUCH LOSS IS CAUSED BY THE ACTIONS OF THE PRIMARY
SERVICER, ITS OFFICERS, EMPLOYEES OR AGENTS IN VIOLATION OF THE PRIMARY
SERVICER'S DUTIES UNDER THIS AGREEMENT (EXCEPT TO THE EXTENT THAT SUCH FAILURE
WAS CAUSED BY THE MASTER SERVICER'S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER
OR UNDER THE POOLING AND SERVICING AGREEMENT). FOR THE AVOIDANCE OF DOUBT, THE
MASTER SERVICER SHALL NOT HAVE ANY LIABILITY UNDER THE IMMEDIATELY PRECEDING
SENTENCE FOR ANY LOSS THAT IS CAUSED BY ANY ACTION THAT IS REQUIRED TO BE TAKEN
BY THE MASTER SERVICER UNDER THE POOLING AND SERVICING AGREEMENT OR THE MASTER
SERVICER'S FAILURE TO TAKE ANY ACTION THAT THE MASTER SERVICER IS REQUIRED TO
REFRAIN FROM TAKING UNDER THE POOLING AND SERVICING AGREEMENT (BUT THIS SENTENCE
SHALL NOT BE CONSTRUED TO LIMIT THE RIGHTS OF THE PRIMARY SERVICER UNDER
SUBSECTION (A)). THE PRIMARY SERVICER SHALL PROMPTLY NOTIFY THE MASTER SERVICER
IF A CLAIM IS MADE BY A THIRD PARTY WITH RESPECT TO THIS AGREEMENT OR THE
MORTGAGE LOANS ENTITLING THE PRIMARY SERVICER TO INDEMNIFICATION HEREUNDER. THE
MASTER SERVICER SHALL ASSUME THE DEFENSE OF ANY SUCH CLAIM (WITH COUNSEL
REASONABLY SATISFACTORY TO THE PRIMARY SERVICER) AND PAY ALL EXPENSES IN
CONNECTION THEREWITH, INCLUDING COUNSEL FEES, AND PROMPTLY PAY, DISCHARGE AND
SATISFY ANY JUDGMENT OR DECREE WHICH MAY BE ENTERED AGAINST IT OR THEM IN
RESPECT OF SUCH CLAIM. ANY FAILURE TO SO NOTIFY THE MASTER SERVICER SHALL NOT
AFFECT ANY OF THE PRIMARY SERVICER'S RIGHTS TO INDEMNIFICATION.
3. THE RIGHTS OF THE PRIMARY SERVICER PROVIDED UNDER THIS SECTION 9.2
SHALL SURVIVE THE PRIMARY SERVICING TERMINATION DATE.
LXXIV.
MISCELLANEOUS
A. SEVERABILITY. If any term, covenant, condition or provision hereof
is unlawful, invalid, or unenforceable for any reasons whatsoever, and such
illegality, invalidity, or unenforceability does not affect remaining part of
this Agreement, then all such remaining parts hereof shall be valid and
enforceable and have full force end effect as if the invalid or unenforceable
part had not been included.
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B. RIGHTS CUMULATIVE; WAIVERS. The rights of each of the parties under
this Agreement are cumulative and may be exercised as often as any party
considers appropriate. The rights of each of the parties hereunder shall not be
capable of being waived or amended other than by an express waiver or amendment
in writing. Any failure to exercise (or any delay in exercising) any of such
rights shall not operate as a waiver or amendment of that or any other such
right. Any defective or partial exercise of any of such right shall not preclude
any other or further exercise of that or any other such right. No act or course
of conduct or negotiation on the part of any party shall in any way estop or
preclude such party from exercising any such right or constitute a suspension or
any waiver of any such right.
C. HEADINGS. The headings of the Sections and Articles contained in
this Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or any provision hereof.
D. CONSTRUCTION. Unless the context otherwise requires, singular nouns
and pronouns, when used herein, shall be deemed to include the plural of such
noun or pronoun and pronouns of one gender shall be deemed to include the
equivalent pronoun of the other gender. This agreement is the result of
arm's-length negotiations between the parties and has been reviewed by each
party hereto and its counsel. Each party agrees that any ambiguity in this
Agreement shall not be interpreted against the party drafting the particular
clause which is in question.
E. SUCCESSORS AND ASSIGNS. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective successors and permitted assigns.
F. PRIOR UNDERSTANDINGS. This Agreement supersedes any and all prior
discussions and agreements between or among the Primary Servicer and the Master
Servicer with respect to the Servicing of the Mortgage Loans and the other
matters contained herein. This Agreement, together with the Pooling and
Servicing Agreement, contains the sole and entire understanding between the
parties hereto with respect to the transactions contemplated herein. If a
conflict exists between this Agreement and the Pooling and Servicing Agreement,
then the Pooling and Servicing Agreement shall control. If this Agreement
requires Primary Servicer to perform a task or duty, the details and obligations
of which (a) are set forth in this Agreement and (b) (i) are not set forth in
the Pooling and Servicing Agreement or (ii) are set forth in the Pooling and
Servicing Agreement only in general terms, then Primary Servicer shall perform
such task and duties in accordance with the details and obligations set forth in
this Agreement. If this Agreement requires Primary Servicer to perform a task or
duty, the details and obligations of which are not set forth in this Agreement
but are contained in the Pooling and Servicing Agreement, then the Primary
Servicer shall perform such task and duties in accordance with the Pooling and
Servicing Agreement.
G. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument. Any
party hereto may execute this Agreement by signing any such counterpart.
24
H. GOVERNING LAWS. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
I. NOTICES. Unless otherwise provided for herein, all notices and
other communications required or permitted hereunder shall be in writing
(including a writing delivered by facsimile transmission) and shall be deemed to
have been duly given (a) when delivered, if sent by registered or certified mail
(return receipt requested), if delivered personally or by facsimile or (b) on
the second following Business Day, if sent by overnight mail or overnight
courier, in each case to the parties at the following addresses (or at such
other addresses as shall be specified by like notice);
If to the Master Servicer:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
If to the Primary Servicer:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
J. AMENDMENT. If the Pooling and Servicing Agreement is amended, then,
upon the Primary Servicer's receipt of such amendment, this Agreement shall be
deemed to have been amended to the extent necessary to reflect such amendment to
the Pooling and Servicing Agreement, but no such amendment to the Pooling and
Servicing Agreement or deemed amendment to this Agreement shall increase the
obligations or decrease the rights of Primary Servicer under this Agreement
without its express written consent which consent shall not be unreasonably
withheld or delayed. This Agreement may not otherwise be altered or modified
except by a written instrument executed by the party against whom enforcement is
sought.
K. OTHER. This Agreement shall not be construed to grant to any party
hereto any claim, right or interest in, to or against the trust fund created
pursuant to the Pooling and Servicing Agreement or any assets of such trust
fund.
L. BENEFITS OF AGREEMENT. Nothing in this Agreement, express or
implied, shall be construed to grant to any Mortgagor or other Person, other
than the parties to this Agreement and the parties to the Pooling and Servicing
Agreement, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement.
[SIGNATURE PAGE FOLLOWS]
25
WITNESS WHEREOF, this Agreement has been signed on behalf of each of
the parties hereto by an authorized representative, all as of the day and year
first above written.
[NAME OF SUCCESSOR MASTER SERVICER],
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
26
SCHEDULE I
LOAN SCHEDULE
EXHIBIT A
POOLING AND SERVICING AGREEMENT
EXHIBIT B
Exhibit B-1: Form of Day One Report
Exhibit B-2: Form of Monthly Remittance Report
Exhibit B-3: Forms of Loan Status Reports
Exhibit B-4: Form of Monthly Report on Pending Special Requests
Exhibit B-5: Task Description
Exhibit B-6: Consent Procedures
EXHIBIT B-1
FORM OF DAY ONE REPORT
EXHIBIT B-2
FORM OF MONTHLY REMITTANCE REPORT
EXHIBIT B-3
FORMS OF LOAN STATUS REPORTS
Exhibit B-3(a): Real estate tax monitoring report
Exhibit B-3(b): Insurance monitoring report
Exhibit B-3(c): UCC monitoring report
EXHIBIT B-3(A)
(REAL ESTATE TAX MONITORING REPORT)
EXHIBIT B-3(B)
(INSURANCE MONITORING REPORT)
EXHIBIT B-3(C)
(UCC MONITORING REPORT)
EXHIBIT B-4
(REPORT ON PENDING SPECIAL REQUESTS)
EXHIBIT B-5
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-HQ6
Note: Some listed tasks designate more than one party to perform that function
by placing an "X' in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of responsibilities
in completing the task found in the terms of this Agreement. In the absence
of specific allocation of obligations in this Agreement, the parties shall
work in good faith to allocate responsibilities in a fair and equitable
manner in accordance with this Agreement and the Pooling and Servicing
Agreement.
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
1. Asset Files
Original collateral file (security) X
Authorized parties list for request for release of collateral from Trustee X X
Establish servicing files criteria X
Establish and maintain servicing files X
Provide access to servicing files and copies of servicing files or of X
specific documents upon request to the Master Servicer
Request delivery of files from Trustee upon request and certification of X
Primary Servicer
---------------------------------------------------------------------------------------------------------------------------
2. Property Taxes
Monitoring of tax status -- Loans with/without escrows X
Recommendation of payment of taxes -- Loans with/without escrows X
Notification of advance requirement not less than 3 business days prior to X
advance being required
Payment of taxes -- with sufficient escrows X
Payment of taxes -- with escrow shortfall X
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-5-1
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
3. Property Insurance
Monitoring of insurance status -- Loans with/without escrows X
Ensure insurance carrier meets Pooling and Servicing Agreement X
qualifications
Ensure insurance in favor of the Master Servicer on behalf of the Trustee X
Recommendation of payment or force placement of insurance with/without X
escrow
Notification of advance requirement or force placement of insurance not X
less than 3 business days prior to advance being required
Payment of insurance -- with sufficient escrows X
Payment of insurance or force placement - with escrow shortfall X
Manage processing of insurance claims in accordance with Mortgage Loan X
documents and the Pooling and Servicing Agreement
Collection of insurance proceeds X
Consent to application of insurance proceeds X
---------------------------------------------------------------------------------------------------------------------------
4. UCC Continuation Filings
Maintain and monitory tickler system of the refiling dates on all Loans X
File UCC Continuation Statements X
Pay recording fees X
---------------------------------------------------------------------------------------------------------------------------
5. Collection/Deposit/Remittance of P&I payments and Principal Prepayments
Collection and deposit of loan P&I payments and Principal Prepayments X
Remittance of available Primary Servicer P&I payments (net of Primary X
Servicing Fee) to Master Servicer
Remittance of collections to the Trustee X
</TABLE>
B-5-2
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Remittance of Special Servicer compensation to the Special Servicer X
Approval of Prepayment Premiums X
---------------------------------------------------------------------------------------------------------------------------
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
---------------------------------------------------------------------------------------------------------------------------
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone not more than 3 days after date of X
delinquency
Send 30 day delinquent notices X
Send notice of balloon payment to each Mortgagor one year, 180 days and 90 X
days prior to the related maturity date
Provide copy of balloon payment notice to Master Servicer X
---------------------------------------------------------------------------------------------------------------------------
8. Escrows
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income as required under mortgage loan documents X
or applicable law
Prepare annual escrow analysis X
---------------------------------------------------------------------------------------------------------------------------
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy to Master Servicer X
Approve payoff calculations and telecopy approval to Primary Servicer X
within five (5) Business Days
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-5-3
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
10. Monitoring of Financial and Legal Covenants
Collect annual operating statements, budgets, rent rolls and borrower X
financial statements, as applicable
For each Mortgaged Property, within 95 calendar days after the end of each X
of the first three quarters (in each year), commencing in the quarter
ending on [date), 20__, in each case for the trailing or quarterly
information received, deliver one (1) copy of completed annual operating
statement analysis using the CMSA Operating Statement Analysis Report and
a completed CMSA Financial File (in each case in the form and containing
the information called for by the version of such report in effect at the
time under the reporting standards of the CMSA) (in electronic format) for
each Mortgaged Property to the Master Servicer, prepared using
non-normalized quarterly operating statements and rent rolls received from
the related Mortgagor.
With respect to each calendar year, beginning in 20__ for year-end 20__, X
no later than the earlier of (i) 30 days after receipt of the underlying
operating statements from the related Mortgagor and (ii) July 1 of such
calendar year, deliver to the Master Servicer an Operating statement
analysis report using the CMSA Operating Statement Analysis Report, a
completed CMSA Financial File and a completed NOI Adjustment Worksheet (in
each case in the form and containing the information called for by the
version of such report in effect at the time under the reporting standards
of the CMSA) for each Mortgage Loan (in electronic format), based on the
most recently available year-end financial statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided
to the Primary Servicer by or
</TABLE>
B-5-4
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
on behalf of each Mortgagor), containing such information and analyses for
each Mortgage Loan provided for in the respective forms of Operating
Statement Analysis Report, CMSA Financial File and NOI Adjustment
Worksheet as would customarily be included in accordance with the
Servicing Standard, including without limitation, Debt Service Coverage
Ratios and income
Deliver to Master Servicer and the Persons identified in (and otherwise in X
accordance with) Section 8.14 of the Pooling and Servicing Agreement
copies of any annual, monthly or quarterly financial statements and rent
rolls collected with respect to the Mortgaged Properties, in each case
within 30 days following receipt thereof by the Primary Servicer. As and
to the extent requested by Master Servicer following request therefor
received by Special Servicer, make inquiry of any Mortgagor with respect
to such information or as regards the performance of the related Mortgaged
Property in general.
---------------------------------------------------------------------------------------------------------------------------
11. Advancing
Determination of Non-Recoverability X
---------------------------------------------------------------------------------------------------------------------------
12. Reporting (Electronic mail)
Prepare and deliver to the Master Servicer the Day One Report (in the form X
of and setting the information called for by Exhibit B-1) on the first
business day of each month
Prepare and deliver to the Master Servicer a Monthly Remittance Report (in X
the form of and setting the information called for by Exhibit B-2) for
payments received on Mortgage Loans on each day that funds are required to
be wired to the Master Servicer under Section 2 of this Agreement
</TABLE>
B-5-5
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Prepare and deliver to the Master Servicer a CMSA Delinquent Loan Status X
Report (in the form and containing the information called for by the
version of such report in effect at the time under the reporting standards
of the CMSA) on all Mortgage Loans on the Primary Servicer Remittance Date
occurring in each month reflecting information as of the close of business
on the Primary Servicer Determination Date occurring in such month
Prepare and deliver to the Master Servicer, on the Primary Servicer X
Remittance Date in each month, a Monthly Report on Pending Special
Requests (in the form of, and setting forth the information called for by,
Exhibit B-4 and in accordance with Exhibit B-6)
Report of payment/account status (trial balance/transaction detail) within X
30 days of the Primary Servicer Remittance Date occurring in each month;
report to be as of the close of business on applicable Distribution Date
Deliver on February 15, May 15, August 15, and November 15 of each year a X
Quarterly Servicing Accounts Reconciliation Certification in the form of
Exhibit E.
Prepare Loan Status Reports (in the forms of and setting the information X
called for by Exhibit B-3) in each January, April, July and October of
each year; deliver same to Master Servicer not later than the Primary
Servicer Remittance Date
Complete and deliver CMSA Loan Setup File (in the form and containing the X X
information called for by the version of such report in effect at the time
under the reporting standards of the CMSA) for Mortgage Loans in
accordance with Pooling and Servicing Agreement
</TABLE>
B-5-6
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Complete CMSA Loan Periodic Update File (in the form and containing the X
information called for by the version of such report in effect at the time
under the reporting standards of the CMSA) for Mortgage Loans reflecting
information as of the close of business on the Primary Servicer
Determination Date in each month; deliver same to Master Servicer not
later than the Primary Servicer Remittance Date occurring in such month;
such report to be in addition to the Day One Report
Complete CMSA Property File (in the form and containing the information X
called for by the version of such report in effect at the time under the
reporting standards of the CNSA) for Mortgage Loans reflecting information
as of the close of business on the Primary Servicer Determination Date in
each month; deliver same to Master Servicer not later than the Primary
Servicer Remittance Date occurring in such month
Complete CMSA Servicer Watch List (in the form and containing the X
information called for by the version of such report in effect at the time
under the reporting standards of the CNSA) for Mortgage Loans reflecting
information (including the information required under Section 8.11(h) of
the Pooling and Servicing Agreement) as of the close of business on the
Primary Servicer Determination Date in each month; deliver same to Master
Servicer not later than the Primary Servicer Remittance Date occurring in
such month
Complete and deliver CMSA Comparative Financial Status Report (in the form X
and containing the information called for by the version of such report in
effect at the time under the reporting standards of the CMSA) reflecting
information as of the close of
</TABLE>
B-5-7
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
business on the Primary Servicer Determination Date in each month; deliver
same to Master Servicer not later than the Primary Servicer Remittance
Date occurring in such month
Complete all other CMSA reports (in the form and containing the X X
information called for by the version of each such report in effect at the
time under the reporting standards of the CMSA) required to be provided by
the Master Servicer under the Pooling and servicing Agreement, reflecting
information as of the close of business on the Primary Servicer
Determination Date in each month; deliver same to Master Servicer not
later than the Primary Servicer Remittance Date occurring in such month
---------------------------------------------------------------------------------------------------------------------------
13. Property Annual Inspections
Conduct site inspection in accordance with requirement of Section 8.17 of X
the Pooling and Servicing Agreement
Provide one copy of Inspection Reports (in the form of and setting forth X
the information called for by Exhibit L to the Pooling and Servicing
Agreement) to the Master Servicer and other Persons identified in Section
8.17 of the Pooling and Servicing Agreement within 30 days of inspection
---------------------------------------------------------------------------------------------------------------------------
14. Preparation of servicing transfer letters X
---------------------------------------------------------------------------------------------------------------------------
15. Preparation of IRS Reporting (1098s and 1099s or other tax reporting X
requirements) and delivery of copies to the Master Servicer by January
31st of each year
---------------------------------------------------------------------------------------------------------------------------
16. Provide Annual Officer's Certificate as to compliance to Master Servicer X
in accordance with Section 5.2 of this Primary Servicing Agreement
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-5-8
<TABLE>
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
17. Provide Annual Independent Accountant's Servicing Report (USAP) to Master X
Servicer in accordance with Section 5.3 of this Primary Servicing
Agreement
---------------------------------------------------------------------------------------------------------------------------
18. Compensation
Primary Servicing Fee X
Investment earnings on Primary Servicer Collection Account, to the extent X
provided in Section 2.1(e) of this Agreement
Investment earnings on escrow or reserve accounts not payable to borrower, X
to the extent provided in Section 2.1(f) of this Agreement
Compensation specified on Exhibit B-6 in connection with modifications, X
waivers, consents or amendments
Late charges and default interest to the extent collected X from borrowers X
(offsets advance interest per Pooling and Servicing Agreement with
remainder to Master Servicer)
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
X-0-0
XXXXXXX X-0
CONSENT PROCEDURES
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM MASTER SERVICER
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-
Through Certificates Series 2005-HQ6
SPACE ABOVE THIS LINE FOR RECORDERS USE
________________________________________________________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that [NAME OF SUCCESSOR MASTER SERVICER], acting
solely in its capacity as Master Servicer ("Master Servicer"), under the Pooling
and Servicing Agreement dated as of [date], 20__ (the "Pooling and Servicing
Agreement") and a Primary Servicing Agreement dated as of [date], 20__ (the
"Primary Servicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6, does hereby nominate, constitute and
appoint XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Primary Servicer under the
Primary Servicing Agreement ("Primary Servicer"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to enable
Primary Servicer to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by Primary
Servicer of its duties as Primary Servicer under the Primary Servicing
Agreement, giving and granting unto Primary Servicer full power and authority to
do and perform any and every act necessary, requisite, or proper in connection
with the foregoing and hereby ratifying, approving or confirming all that
primary Servicer shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ________ day of [date], 20__.
[MANE OF SUCCESSOR MASTER SERVICER],
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement and the Primary Servicing
Agreement
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
C-1
EXHIBIT D
CERTIFICATION
Re: Bear Xxxxxxx Commercial Mortgage Securities, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6 issued pursuant to the
pooling and servicing agreement dated as of [date], 20 (the "Pooling
and Servicing Agreement") among Xxxxxx Xxxxxxx Capital I Inc., as
depositor, [NAME OF SUCCESSOR MASTER SERVICER], as master servicer
(the "Servicer"), CWCapital Asset Management LLC, as special servicer,
LeSalle Bank National Association, as trustee (the "Trustee"), Xxxxx
Fargo Bank, National Association, as paying agent and certificate
registrar, and ABN AMRO Bank N.V., as fiscal agent.
I, _____________ [identify the certifying individual], a ________________
[name of officer title] of XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national
banking association ("Xxxxx Fargo"), on behalf of Xxxxx Fargo, as primary
servicer (the "Primary Servicer"), do hereby certify to the Servicer and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. Based on our knowledge, with respect to the period ending December 31,
20__ (the "Relevant Period"), all required reportable information (the
"Servicing Reports") was materially complete and reviewed by the Primary
Servicer prior to its submission to the Servicer under the Primary Servicing
Agreement for inclusion in the monthly servicing reports issued by the Servicer
to the Trustee under the Pooling and Servicing Agreement, and all reports
required to be submitted by the Primary Servicer to the Servicer pursuant to the
Primary Servicing Agreement (the "Primary Servicing Reports") have been
submitted by the Primary Servicer to the Servicer;
2. Based on our knowledge, the information contained in the Primary
Servicing Reports, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not
misleading as of the period ending December 31, 20__;
3. Based on our knowledge and the annual compliance review required under
Section 5.2 of the Primary Servicing Agreement, during the Relevant Period the
Primary Servicer has fulfilled its obligations under the Primary Servicing
Agreement in all material respects, except as disclosed in the annual officer's
certificate required under such Section; and
4. The Primary Servicer has disclosed to its certified public accountants
all significant deficiencies relating to the Primary Servicer's compliance with
the minimum servicing standards, and such deficiencies, if any, have been
included in the independent public accountants' report (the "Report"). The
Report was created in accordance with a review covering the Relevant Period in
compliance with the minimum servicing standards set forth in the Mortgage
Bankers Association's "Uniform Single Attestation Program" or similar standard
as set forth in the Primary Servicing Agreement.
D-1
Date: March __, 200_
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By
----------------------------------
Name:
----------------------------
Title:
---------------------------
D-2
EXHIBIT E
QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer: Xxxxx Fargo Bank, National Association
RE: Bear Xxxxxxx Commercial Mortgage Securities, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6
Pursuant to the Primary Servicing Agreement between [NAME OF SUCCESSOR MASTER
SERVICER] ("Master Servicer") and Xxxxx Fargo Bank, National Association
("Primary Servicer") for the transaction referenced above, I hereby certify with
respect to each mortgage loan primary serviced by Primary Servicer for Master
Servicer for such transaction that within 45 days after the end of each of the
months of [January, February and March] [April, May and June] [July, August and
September] [October, November and December], any and all deposit accounts,
escrow accounts and reserve accounts, and any and all other collection accounts
and servicing accounts, related to such mortgage loan have been properly
reconciled, and the reconciliations have been reviewed and approved, by Primary
Servicer's management, except as otherwise noted below:
EXCEPTIONS:
--------------------------------------------------------------------
[Signature]
----------------------------
Name: [INSERT NAME OF SERVICING OFFICER]
----------------------------------
Title: Servicing Officer, Xxxxx Fargo Bank, National Association
Date: [February, May, August, November] 15, [20__]
D-1
EXHIBIT BB
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
<TABLE>
--------------------------------------------------------------------------------------------------
Information Format Frequency
--------------------------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
--------------------------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF As received/Quarterly
--------------------------------------------------------------------------------------------------
Other Financials as required by
loan documents Actual PDF/TIF As received
--------------------------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF As received/Quarterly
--------------------------------------------------------------------------------------------------
Payments Received After Determination
Date Report (1) Monthly Excel Master Servicer Remittance Date
--------------------------------------------------------------------------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel 30th of each month
--------------------------------------------------------------------------------------------------
Interest on Advance Reconciliation Monthly Excel Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Setup File (Issuer/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
Distribution Statement (Paying Agent) Monthly Excel/PDF Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Collateral File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
Documentation Exceptions Report
(Paying Agent) Quarterly Access/Excel Monthly/Distribution Date
--------------------------------------------------------------------------------------------------
</TABLE>
Footnotes:
1) On the Master Servicer Remittance Date following each Determination
Date, a list of all Mortgage Loans which are delinquent as to the
applicable Collection Period on that Master Servicer Remittance Date.
This list should represent all delinquent Mortgage Loans that required
a P&I Advance to be made.
2) On the last day of the month (30th), for all delinquencies reported in
#1 above, a list of all Mortgage Loans which remain delinquent for
such Collection Period (along with the number of days delinquent),
accompanied with any reason, in the Master Servicer's opinion, for the
continued delinquency of such Mortgage Loans, along with an
explanation of the Master Servicer's attempts to cure.
3) Special Servicer requests that the above information be organized in
ascending Prospectus Loan I.D. order and forwarded on each of the
above listed dates via E-Mail to the following address, or all reports
and data files shall be available via the Master Servicer's or the
Trustee's Website.
D-1
EXHIBIT CC
Form of Performance Certification
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: Xxxxxx Xxxxxxx Capital I Inc. Trust 2005-HQ6 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ6, issued pursuant
to the Pooling and Servicing Agreement, dated as of August 1, 2005
(the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital
I Inc., as depositor (the "Depositor"), Prudential Asset Resources,
Inc., as master servicer (the "PAR Master Servicer"), Xxxxx Fargo
Bank, National Association, as master servicer (the "Xxxxx Fargo
Master Servicer", and together with the PAR Master Servicer, the
"Master Servicers"), CWCapital Asset Management LLC, as special
servicer (the "Special Servicer"), LaSalle Bank National Association,
as Trustee (the "Trustee") and Xxxxx Fargo Bank, National Association,
as Certificate Registrar and Paying Agent (the "Certificate
Registrar"). Capitalized terms used herein but not defined herein have
the respective meanings given them in the Pooling and Servicing
Agreement.
I, [identify the certifying individual], certify to the Depositor [and the
Trustee] [add for certifications signed by an officer of the Master Servicer or
the Special Servicer], and [its][their] [add for certifications signed by an
officer of the Master Servicer or the Special Servicer] officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. [To be certified by the Trustee] [I have reviewed the annual
report on Form 10-K for the fiscal year [___] (the "Annual
Report"), and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered
by the Annual Report (collectively with the Annual Report, the
"Reports"), of the Trust;]
2. [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by the
Annual Report;]
3. [To be covered by the Trustee] [To the best of my knowledge, the
distribution or servicing information required to be provided to
the Trustee by the Master Servicer, the Special Servicer under
the Pooling and
D-1
Servicing Agreement for inclusion in the Reports is included in
the Reports;]
4. [To be certified by each of the Master Servicer and the Special
Servicer] [I am responsible for reviewing the activities
performed by the [Master Servicer] [Special Servicer] under the
Pooling and Servicing Agreement and based upon my knowledge and
the annual compliance review performed as required under Section
[8.12] [9.18] of the Pooling and Servicing Agreement, and except
as disclosed in the compliance certificate delivered pursuant to
Section [8.12] [9.18] of the Pooling and Servicing Agreement, the
[Master Servicer] [Special Servicer] has fulfilled its material
obligations under the Pooling and Servicing Agreement; and]
5. [To be certified by each of the Master Servicer and the General
Special Servicer] [I have disclosed to the [Master Servicer's]
[Special Servicer's] certified public accountants all significant
deficiencies, to my knowledge, relating to the compliance of the
[Master Servicer] [Special Servicer] with the minimum servicing
standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers
or similar standard as set forth in the Pooling and Servicing
Agreement.]
Date:
-------------------------------
-------------------------------------
[Signature]
-------------------------------------
[Title]
D-2
[EXHIBIT DD
FORM OF TRUSTEE NON-SERVICED MORTGAGE LOAN NOTICE
August 11, 2005
[INSERT ADDRESSES OF RELATED TRUSTEE, CERTIFICATE REGISTRAR, PAYING AGENT,
MASTER SERVICER AND SPECIAL SERVICER]
[Holders of the [Name of Non-Serviced Companion Loans]]
Re: Xxxxxx Xxxxxxx Capital I Trust 2005-HQ6, Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 - [Name of Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Trust 2005-HQ6, Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 (the "Trust Fund") is the [_________] Noteholder,
as such term is defined under the [description of intercreditor agreement] (the
"Intercreditor Agreement"). In connection with the deposit of the [___] Note of
the [Non-Serviced Mortgage Loan] into the Xxxxxx Xxxxxxx Capital I Trust
2005-HQ6 established by Xxxxxx Xxxxxxx Capital I Inc., the contact information
for each of the parties to the related pooling and servicing agreement are set
forth on Schedule I attached hereto.
The [Non-Serviced Mortgage Loan] is being serviced pursuant to the terms of that
certain Pooling and Sevicing agreement dated as of [________], among
[_______________], as may be from time to time amended, supplemented or modified
(the "[______________] Pooling Agreement"). Xxxxx Fargo Bank, National
Association, as Certificate Registrar and Paying Agent for the registered
holders of the Trust Fund (the "Certificate Registrar"), hereby directs the
applicable parties to the [______________] Pooling Agreement as follows:
(i) Remit all amounts payable in accordance with the Intercreditor Agreement and
the [______________] Pooling Agreement due to the holder of the [___] Note of
the [Non-Serviced Mortgage Loan] on such days as specified in the
[______________] Pooling Agreement to [Prudential Asset Resources, Inc.][Xxxxx
Fargo Bank, National Association], as master servicer of the Trust Fund (the
"Master Servicer"), and to the collection account set forth on Schedule II
attached hereto; and
(ii) Forward, deliver or otherwise make available, as the case may be, all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to the holder of the [___]
Note of the [Non-Serviced Mortgage Loan] in accordance with the Intercreditor
Agreement and the [______________] Pooling Agreement to the Certificate
Registrar and the Master Servicer.
DD-1
Thank you for your attention to this matter.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar and Paying Agent for the Holders of the Xxxxxx Xxxxxxx
Capital I Trust 2005-HQ6, Commercial Mortgage Pass-Through Certificates,
Series2005-HQ6
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
DD-2
SCHEDULE I TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
Prudential Asset Resources, Inc.
[Address}
Xxxxx Fargo Bank, National Association, as Master Servicer
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
CWCapital Asset Management LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Schedule I to DD
SCHEDULE II TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
(MSCI 2005-HQ6 Collection Account Information)
Schedule II to DD
SCHEDULE I
MSMC LOAN SCHEDULE
MSCI 2005-HQ6
LOAN SCHEDULE
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------- ------------ ---------- -------- --------- -------- --------- --------
0 XXXX Xxxxxxx Xxxxxx Retail $340,000,000 04/04/2005 120 116 IO IO 5.475%
2 MSMC 0000 Xxxxxxxx $287,000,000 05/09/2005 119 116 IO IO 5.964%
3 MSMC U-Haul Xxxx Stadium $ 9,329,239 06/08/2005 120 119 300 299 5.520%
4 MSMC Spring U-Haul Center $ 3,039,165 06/08/2005 120 119 300 299 5.520%
5 MSMC U-Haul Center Pelham $ 2,940,860 06/08/2005 120 119 300 299 5.520%
6 MSMC U-Haul Ct Summer Av $ 1,800,419 06/08/2005 120 119 300 299 5.520%
0 XXXX X-Xxxx Xx Xxxxxxxxxx $ 1,564,099 06/08/2005 120 119 300 299 5.520%
0 XXXX X-Xxxx Xxx Xxxxxxxx $ 1,521,986 06/08/2005 120 119 300 299 5.520%
0 XXXX X-Xxxx Xxx Xxxxxxx $ 1,461,963 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxx Xx Xxxxxxxxxx $ 1,459,304 06/08/2005 120 119 300 299 5.520%
11 MSMC U-Haul Somerville $ 1,423,153 06/08/2005 120 119 300 299 5.520%
12 MSMC U-Haul Rental East $ 1,274,939 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxx Xxx $ 1,171,757 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xxxxxxxxx $ 1,054,012 06/08/2005 120 119 300 299 5.520%
15 MSMC U-Haul Cumberland $ 1,050,768 06/08/2005 120 119 300 299 5.520%
16 MSMC U-Haul Center Page Avenue $ 1,048,760 06/08/2005 120 119 300 299 5.520%
17 MSMC U-Haul Livernois&&7M $ 963,811 06/08/2005 120 119 300 299 5.520%
18 MSMC U-Haul Center Xxx Xxxxx $ 711,874 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxx Xx Xxxx Xxxxx $ 704,020 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xxxxx Xxx $ 666,974 06/08/2005 120 119 300 299 5.520%
21 MSMC U-Haul Of Reading $ 664,144 06/08/2005 120 119 300 299 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ---------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
1 NAP $1,572,795 4 28 88 4 3.175 0.125 0.05 1.00
2 NAP $1,446,201 3 27 88 4 3.175 0.125 0.05 1.00
3 $57,482 NAP 1 25 88 7 3.175 0.125 0.05 1.00
4 $18,726 NAP 1 25 88 7 3.175 0.125 0.05 1.00
5 $18,120 NAP 1 25 88 7 3.175 0.125 0.05 1.00
6 $11,093 NAP 1 25 88 7 3.175 0.125 0.05 1.00
7 $ 9,637 NAP 1 25 88 7 3.175 0.125 0.05 1.00
8 $ 9,378 NAP 1 25 88 7 3.175 0.125 0.05 1.00
9 $ 9,008 NAP 1 25 88 7 3.175 0.125 0.05 1.00
10 $ 8,991 NAP 1 25 88 7 3.175 0.125 0.05 1.00
11 $ 8,769 NAP 1 25 88 7 3.175 0.125 0.05 1.00
12 $ 7,855 NAP 1 25 88 7 3.175 0.125 0.05 1.00
13 $ 7,220 NAP 1 25 88 7 3.175 0.125 0.05 1.00
14 $ 6,494 NAP 1 25 88 7 3.175 0.125 0.05 1.00
15 $ 6,474 NAP 1 25 88 7 3.175 0.125 0.05 1.00
16 $ 6,462 NAP 1 25 88 7 3.175 0.125 0.05 1.00
17 $ 5,938 NAP 1 25 88 7 3.175 0.125 0.05 1.00
18 $ 4,386 NAP 1 25 88 7 3.175 0.125 0.05 1.00
19 $ 4,338 NAP 1 25 88 7 3.175 0.125 0.05 1.00
20 $ 4,110 NAP 1 25 88 7 3.175 0.125 0.05 1.00
21 $ 4,092 NAP 1 25 88 7 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------- ---------- ---------- -------- --------- -------- --------- --------
22 MSMC U-Haul Center Of Xxxxx $ 636,603 06/08/2005 120 119 300 299 5.520%
23 MSMC U-Haul Ct E Sprague $ 624,698 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xx Xxxxxx $ 551,405 06/08/2005 120 119 300 299 5.520%
25 MSMC U-Haul Schenectady $ 546,676 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xxxxxxxxx $ 541,747 06/08/2005 120 119 300 299 5.520%
27 MSMC U-Haul Metro Center $ 496,486 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xxxxxxxx $ 480,384 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xx Xxxxx $ 479,765 06/08/2005 120 119 300 299 5.520%
30 MSMC U-Haul Xxxxxxxxx Xx $4,646,550 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxx Xxxxxx Xxxx $3,855,175 06/08/2005 120 119 300 299 5.520%
32 MSMC U-Haul Westside Erie $2,702,505 06/08/2005 120 119 300 299 5.520%
33 MSMC U-Haul Northeast Ex $1,839,139 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxxx Xxxx $1,541,795 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxxxxx Xxxxxx $1,304,221 06/08/2005 120 119 300 299 5.520%
36 MSMC U-Haul Boulder Hwy $1,287,414 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxxx $1,181,892 06/08/2005 120 119 300 299 5.520%
38 MSMC U-Haul Center Hempstead $1,059,119 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxx Av $1,035,012 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx X Xxxxxxxxxx $1,012,638 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxx Xxxxxx $ 999,994 06/08/2005 120 119 300 299 5.520%
42 MSMC U-Haul E Speedway $ 979,657 06/08/2005 120 119 300 299 5.520%
43 MSMC U-Haul Ctr Sooner $ 919,510 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxx $ 891,285 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Southside $ 861,599 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxxxxx $ 855,757 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxxx $ 723,077 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Garland $ 715,379 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxxxx $ 696,091 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx $ 687,055 06/08/2005 120 119 300 299 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
22 $ 3,922 NAP 1 25 88 7 3.175 0.125 0.05 1.00
23 $ 3,849 NAP 1 25 88 7 3.175 0.125 0.05 1.00
24 $ 3,397 NAP 1 25 88 7 3.175 0.125 0.05 1.00
25 $ 3,368 NAP 1 25 88 7 3.175 0.125 0.05 1.00
26 $ 3,338 NAP 1 25 88 7 3.175 0.125 0.05 1.00
27 $ 3,059 NAP 1 25 88 7 3.175 0.125 0.05 1.00
28 $ 2,960 NAP 1 25 88 7 3.175 0.125 0.05 1.00
29 $ 2,956 NAP 1 25 88 7 3.175 0.125 0.05 1.00
30 $28,629 NAP 1 25 88 7 3.175 0.125 0.05 1.00
31 $23,753 NAP 1 25 88 7 3.175 0.125 0.05 1.00
32 $16,651 NAP 1 25 88 7 3.175 0.125 0.05 1.00
33 $11,332 NAP 1 25 88 7 3.175 0.125 0.05 1.00
34 $ 9,500 NAP 1 25 88 7 3.175 0.125 0.05 1.00
35 $ 8,036 NAP 1 25 88 7 3.175 0.125 0.05 1.00
36 $ 7,932 NAP 1 25 88 7 3.175 0.125 0.05 1.00
37 $ 7,282 NAP 1 25 88 7 3.175 0.125 0.05 1.00
38 $ 6,526 NAP 1 25 88 7 3.175 0.125 0.05 1.00
39 $ 6,377 NAP 1 25 88 7 3.175 0.125 0.05 1.00
40 $ 6,239 NAP 1 25 88 7 3.175 0.125 0.05 1.00
41 $ 6,161 NAP 1 25 88 7 3.175 0.125 0.05 1.00
42 $ 6,036 NAP 1 25 88 7 3.175 0.125 0.05 1.00
43 $ 5,666 NAP 1 25 88 7 3.175 0.125 0.05 1.00
44 $ 5,492 NAP 1 25 88 7 3.175 0.125 0.05 1.00
45 $ 5,309 NAP 1 25 88 7 3.175 0.125 0.05 1.00
46 $ 5,273 NAP 1 25 88 7 3.175 0.125 0.05 1.00
47 $ 4,455 NAP 1 25 88 7 3.175 0.125 0.05 1.00
48 $ 4,408 NAP 1 25 88 7 3.175 0.125 0.05 1.00
49 $ 4,289 NAP 1 25 88 7 3.175 0.125 0.05 1.00
50 $ 4,233 NAP 1 25 88 7 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ------------------------------ ---------- ---------- -------- --------- -------- --------- --------
Xxxxxx Xx
00 XXXX X-Xxxx Xxx Xxxxxxxx $ 675,374 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx X Xxxxxxxxx $ 659,421 06/08/2005 120 119 300 299 5.520%
53 MSMC U-Haul W Xxxxxxx $ 554,262 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxxx Xx $ 543,547 06/08/2005 120 119 300 299 5.520%
55 MSMC U-Haul Ct Of Moscow $ 502,078 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxx Xx Xxxxxxxxxx $ 202,913 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxx Xxxxxxxxxxx $3,876,265 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxx Xxxxxxx Xxxx $3,406,359 06/08/2005 120 119 300 299 5.520%
59 MSMC U-Haul 26Th And Indian School $2,840,504 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxx Xxxxx Xxxxxxx $2,549,680 06/08/2005 120 119 300 299 5.520%
61 MSMC U-Haul Evanston $1,852,871 06/08/2005 120 119 300 299 5.520%
62 MSMC U-Haul Center La Brea $1,739,286 06/08/2005 120 119 300 299 5.520%
63 MSMC U-Haul 34Th && Q $1,302,131 06/08/2005 120 119 300 299 5.520%
64 MSMC U-Haul Roxborough $1,118,743 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxx Xx $1,090,343 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxx 0 $1,075,244 06/08/2005 120 119 300 299 5.520%
67 MSMC U-Haul Clarksville $1,065,982 06/08/2005 120 119 300 299 5.520%
68 MSMC U-Haul Center Ft Xxxxxx $1,047,438 06/08/2005 120 119 300 299 5.520%
69 MSMC U-Haul Huntington $1,005,820 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx X-00&&Xxxxxx $ 990,197 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxx $ 819,819 06/08/2005 120 119 300 299 5.520%
72 MSMC U-Haul Center Xxxxxx $ 783,628 06/08/2005 120 119 300 299 5.520%
73 MSMC U-Haul Xxxxxxxx Air $ 763,423 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xxxxxx Xx $ 735,918 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxx Xxxxx $ 700,432 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxx Xxxxx $ 636,027 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xx Xxxxx Xx $ 627,710 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xx $ 560,986 06/08/2005 120 119 300 299 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
51 $ 4,161 NAP 1 25 88 7 3.175 0.125 0.05 1.00
52 $ 4,063 NAP 1 25 88 7 3.175 0.125 0.05 1.00
53 $ 3,415 NAP 1 25 88 7 3.175 0.125 0.05 1.00
54 $ 3,349 NAP 1 25 88 7 3.175 0.125 0.05 1.00
55 $ 3,094 NAP 1 25 88 7 3.175 0.125 0.05 1.00
56 $ 1,250 NAP 1 25 88 7 3.175 0.125 0.05 1.00
57 $23,883 NAP 1 25 88 7 3.175 0.125 0.05 1.00
58 $20,988 NAP 1 25 88 7 3.175 0.125 0.05 1.00
59 $17,502 NAP 1 25 88 7 3.175 0.125 0.05 1.00
60 $15,710 NAP 1 25 88 7 3.175 0.125 0.05 1.00
61 $11,416 NAP 1 25 88 7 3.175 0.125 0.05 1.00
62 $10,717 NAP 1 25 88 7 3.175 0.125 0.05 1.00
63 $ 8,023 NAP 1 25 88 7 3.175 0.125 0.05 1.00
64 $ 6,893 NAP 1 25 88 7 3.175 0.125 0.05 1.00
65 $ 6,718 NAP 1 25 88 7 3.175 0.125 0.05 1.00
66 $ 6,625 NAP 1 25 88 7 3.175 0.125 0.05 1.00
67 $ 6,568 NAP 1 25 88 7 3.175 0.125 0.05 1.00
68 $ 6,454 NAP 1 25 88 7 3.175 0.125 0.05 1.00
69 $ 6,197 NAP 1 25 88 7 3.175 0.125 0.05 1.00
70 $ 6,101 NAP 1 25 88 7 3.175 0.125 0.05 1.00
71 $ 5,051 NAP 1 25 88 7 3.175 0.125 0.05 1.00
72 $ 4,828 NAP 1 25 88 7 3.175 0.125 0.05 1.00
73 $ 4,704 NAP 1 25 88 7 3.175 0.125 0.05 1.00
74 $ 4,534 NAP 1 25 88 7 3.175 0.125 0.05 1.00
75 $ 4,316 NAP 1 25 88 7 3.175 0.125 0.05 1.00
76 $ 3,919 NAP 1 25 88 7 3.175 0.125 0.05 1.00
77 $ 3,868 NAP 1 25 88 7 3.175 0.125 0.05 1.00
78 $ 3,456 NAP 1 25 88 7 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ------------------------------ ---------- ---------- -------- --------- -------- --------- --------
Pearl
79 MSMC U-Haul Xxxx Xxxxxxx $ 527,904 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxxxxxxx Xxxxx Xxxxxxx $ 479,395 06/08/2005 120 119 300 299 5.520%
81 MSMC U-Haul National Rd $ 372,978 06/08/2005 120 119 300 299 5.520%
82 MSMC U-Haul New Britain $ 369,521 06/08/2005 120 119 300 299 5.520%
83 MSMC U-Haul Ct Groes Ten $ 244,368 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xx Xxxxxx Xxxxxx $3,609,697 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxx $2,986,139 06/08/2005 120 119 300 299 5.520%
86 MSMC U-Haul Of Gardena $2,517,890 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxxx $1,708,605 06/08/2005 120 119 300 299 5.520%
88 MSMC U-Haul Norristown $1,684,823 06/08/2005 120 119 300 299 5.520%
89 MSMC U-Haul Leominster $1,392,753 06/08/2005 120 119 300 299 5.520%
90 MSMC U-Haul Center Midtown $1,389,702 06/08/2005 120 119 300 299 5.520%
91 MSMC U-Haul Chinden Blvd $1,301,683 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx 00Xx & Xxxxxxx $1,237,174 06/08/2005 120 119 300 299 5.520%
93 MSMC U-Haul Ctr Of Janaf $1,187,113 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxx Xxxxxxx $1,062,249 06/08/2005 120 119 300 299 5.520%
95 MSMC U-Haul Appleton $1,027,077 06/08/2005 120 119 300 299 5.520%
00 XXXX X-Xxxx Xxxx Xxxx $1,026,781 06/08/2005 120 119 300 299 5.520%
97 MSMC U-Haul Canyon&& Xxxxxx $1,005,064 06/08/2005 120 119 300 299 5.520%
98 MSMC U-Haul Hillwood Pla $ 913,491 06/08/2005 120 119 300 299 5.520%
99 MSMC U-Haul Burlingame $ 908,546 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxxxx Xxxx $ 888,365 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxx Xxxxx $ 884,421 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxxxxxx $ 778,261 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxxxx Xxx $ 699,576 06/08/2005 120 119 300 299 5.520%
104 MSMC U-Haul Center Duluth $ 682,682 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xx Xxxx Xxxxxxx $ 550,050 06/08/2005 120 119 300 299 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
79 $ 3,253 NAP 1 25 88 7 3.175 0.125 0.05 1.00
80 $ 2,954 NAP 1 25 88 7 3.175 0.125 0.05 1.00
81 $ 2,298 NAP 1 25 88 7 3.175 0.125 0.05 1.00
82 $ 2,277 NAP 1 25 88 7 3.175 0.125 0.05 1.00
83 $ 1,506 NAP 1 25 88 7 3.175 0.125 0.05 1.00
84 $22,241 NAP 1 25 88 7 3.175 0.125 0.05 1.00
85 $18,399 NAP 1 25 88 7 3.175 0.125 0.05 1.00
86 $15,514 NAP 1 25 88 7 3.175 0.125 0.05 1.00
87 $10,527 NAP 1 25 88 7 3.175 0.125 0.05 1.00
88 $10,381 NAP 1 25 88 7 3.175 0.125 0.05 1.00
89 $ 8,581 NAP 1 25 88 7 3.175 0.125 0.05 1.00
90 $ 8,563 NAP 1 25 88 7 3.175 0.125 0.05 1.00
91 $ 8,020 NAP 1 25 88 7 3.175 0.125 0.05 1.00
92 $ 7,623 NAP 1 25 88 7 3.175 0.125 0.05 1.00
93 $ 7,314 NAP 1 25 88 7 3.175 0.125 0.05 1.00
94 $ 6,545 NAP 1 25 88 7 3.175 0.125 0.05 1.00
95 $ 6,328 NAP 1 25 88 7 3.175 0.125 0.05 1.00
96 $ 6,326 NAP 1 25 88 7 3.175 0.125 0.05 1.00
97 $ 6,193 NAP 1 25 88 7 3.175 0.125 0.05 1.00
98 $ 5,628 NAP 1 25 88 7 3.175 0.125 0.05 1.00
99 $ 5,598 NAP 1 25 88 7 3.175 0.125 0.05 1.00
100 $ 5,474 NAP 1 25 88 7 3.175 0.125 0.05 1.00
101 $ 5,449 NAP 1 25 88 7 3.175 0.125 0.05 1.00
102 $ 4,795 NAP 1 25 88 7 3.175 0.125 0.05 1.00
103 $ 4,310 NAP 1 25 88 7 3.175 0.125 0.05 1.00
104 $ 4,206 NAP 1 25 88 7 3.175 0.125 0.05 1.00
105 $ 3,389 NAP 1 25 88 7 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ---------------------------- ---------- ---------- -------- --------- -------- --------- --------
000 XXXX X-Xxxx Xxxxxx Xxxx Xxxxxx $ 507,663 06/08/2005 120 119 300 299 5.520%
107 MSMC U-Haul Southside $ 424,206 06/08/2005 120 119 300 299 5.520%
108 MSMC U-Haul Xxxxxxxxxx H $ 368,890 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxx Xxxx $ 335,353 06/08/2005 120 119 300 299 5.520%
110 MSMC U-Haul Spartanburg $ 113,029 06/08/2005 120 119 300 299 5.520%
111 MSMC Woodlake U-Haul Center $2,518,259 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxxxxx $2,480,039 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xx Xxxxxx Xxxx $2,347,624 06/08/2005 120 119 300 299 5.520%
114 MSMC U-Haul White Plains $2,078,806 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxxxxxxxx $1,811,702 06/08/2005 120 119 300 299 5.520%
116 MSMC U-Haul Portsmouth $1,658,461 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Of Xxxxxx $1,617,438 06/08/2005 120 119 300 299 5.520%
118 MSMC U-Haul Wyoming Valley $1,584,698 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxx Xxxx $1,528,517 06/08/2005 120 119 300 299 5.520%
120 MSMC U-Haul Center Midtown $1,400,818 06/08/2005 120 119 300 299 5.520%
121 MSMC U-Haul Midway Rental $1,354,269 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxx Xxxxxxx $1,253,965 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxx 0Xx Xxx $1,067,440 06/08/2005 120 119 300 299 5.520%
124 MSMC U-Haul Idaho Falls $1,066,026 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxx Xxxxxx $1,030,587 06/08/2005 120 119 300 299 5.520%
126 MSMC U-Haul Xxxxxxxxxx $ 842,053 06/08/2005 120 119 300 299 5.520%
127 MSMC U-Haul 7 Mi Van Dyk $ 781,091 06/08/2005 120 119 300 299 5.520%
128 MSMC U-Haul Bowling Green $ 670,762 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxxxxxx $ 666,647 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxx Xxxxx $ 649,842 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxxx Xxxx $ 627,587 06/08/2005 120 119 300 299 5.520%
132 MSMC U-Haul Center Calumet $ 520,530 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxxxxxx $ 428,968 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx N $ 366,179 06/08/2005 120 119 300 299 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
106 $ 3,128 NAP 1 25 88 7 3.175 0.125 0.05 1.00
107 $ 2,614 NAP 1 25 88 7 3.175 0.125 0.05 1.00
108 $ 2,273 NAP 1 25 88 7 3.175 0.125 0.05 1.00
109 $ 2,066 NAP 1 25 88 7 3.175 0.125 0.05 1.00
110 $ 696 NAP 1 25 88 7 3.175 0.125 0.05 1.00
111 $15,516 NAP 1 25 88 7 3.175 0.125 0.05 1.00
112 $15,281 NAP 1 25 88 7 3.175 0.125 0.05 1.00
113 $14,465 NAP 1 25 88 7 3.175 0.125 0.05 1.00
114 $12,808 NAP 1 25 88 7 3.175 0.125 0.05 1.00
115 $11,163 NAP 1 25 88 7 3.175 0.125 0.05 1.00
116 $10,219 NAP 1 25 88 7 3.175 0.125 0.05 1.00
117 $ 9,966 NAP 1 25 88 7 3.175 0.125 0.05 1.00
118 $ 9,764 NAP 1 25 88 7 3.175 0.125 0.05 1.00
119 $ 9,418 NAP 1 25 88 7 3.175 0.125 0.05 1.00
120 $ 8,631 NAP 1 25 88 7 3.175 0.125 0.05 1.00
121 $ 8,344 NAP 1 25 88 7 3.175 0.125 0.05 1.00
122 $ 7,726 NAP 1 25 88 7 3.175 0.125 0.05 1.00
123 $ 6,577 NAP 1 25 88 7 3.175 0.125 0.05 1.00
124 $ 6,568 NAP 1 25 88 7 3.175 0.125 0.05 1.00
125 $ 6,350 NAP 1 25 88 7 3.175 0.125 0.05 1.00
126 $ 5,188 NAP 1 25 88 7 3.175 0.125 0.05 1.00
127 $ 4,813 NAP 1 25 88 7 3.175 0.125 0.05 1.00
128 $ 4,133 NAP 1 25 88 7 3.175 0.125 0.05 1.00
129 $ 4,108 NAP 1 25 88 7 3.175 0.125 0.05 1.00
130 $ 4,004 NAP 1 25 88 7 3.175 0.125 0.05 1.00
131 $ 3,867 NAP 1 25 88 7 3.175 0.125 0.05 1.00
132 $ 3,207 NAP 1 25 88 7 3.175 0.125 0.05 1.00
133 $ 2,643 NAP 1 25 88 7 3.175 0.125 0.05 1.00
134 $ 2,256 NAP 1 25 88 7 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- -------------------------- ------------ ---------- -------- --------- -------- --------- --------
Xxxxxxx
135 MSMC U-Haul Cape Xxxxxx $ 344,634 06/08/2005 120 119 300 299 5.520%
136 MSMC U-Haul Ctr Ft Xxxxx $ 319,603 06/08/2005 120 119 300 299 5.520%
137 MSMC U-Haul Grand Concourse $ 3,661,870 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxxxxxx $ 2,222,043 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxxx Xxx $ 1,908,153 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxx Xxxxxx $ 1,757,754 06/08/2005 120 119 300 299 5.520%
141 MSMC U-Haul Center Eastside $ 1,565,474 06/08/2005 120 119 300 299 5.520%
142 MSMC U-Haul Castleton $ 1,502,539 06/08/2005 120 119 300 299 5.520%
143 MSMC U-Haul Overbrook $ 1,264,929 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxxxx St $ 1,253,931 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxx Xxxxxxx $ 1,150,070 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxx Xxxx $ 1,142,921 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxx Xxxxx $ 1,074,372 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxx Xxxxxxx $ 1,027,216 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxx Xxxxxxx $ 1,007,774 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx X Xxxxxxxx $ 977,693 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxxx Xxx $ 852,688 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxxxxxx $ 843,466 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Joy Road $ 827,501 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxx Xxxxxx $ 707,792 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxxxxxxxx $ 697,376 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxxx Xxxx $ 618,478 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxx Xxxx $ 559,046 06/08/2005 120 119 300 299 5.520%
158 MSMC U-Haul Erie && High $ 515,849 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxx Xxxx $ 395,439 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxxx Xxxx $ 351,569 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xxxxxx Xxxxx Xxxxxx $ 328,450 06/08/2005 120 119 300 299 5.520%
000 XXXX X-Xxxx Xx Xxxxxxx $ 303,874 06/08/2005 120 119 300 299 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- -------- -------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
135 $ 2,123 NAP 1 25 88 7 3.175 0.125 0.05 1.00
136 $ 1,969 NAP 1 25 88 7 3.175 0.125 0.05 1.00
137 $ 22,562 NAP 1 25 88 7 3.175 0.125 0.05 1.00
138 $ 13,691 NAP 1 25 88 7 3.175 0.125 0.05 1.00
139 $ 11,757 NAP 1 25 88 7 3.175 0.125 0.05 1.00
140 $ 10,830 NAP 1 25 88 7 3.175 0.125 0.05 1.00
141 $ 9,646 NAP 1 25 88 7 3.175 0.125 0.05 1.00
142 $ 9,258 NAP 1 25 88 7 3.175 0.125 0.05 1.00
143 $ 7,794 NAP 1 25 88 7 3.175 0.125 0.05 1.00
144 $ 7,726 NAP 1 25 88 7 3.175 0.125 0.05 1.00
145 $ 7,086 NAP 1 25 88 7 3.175 0.125 0.05 1.00
146 $ 7,042 NAP 1 25 88 7 3.175 0.125 0.05 1.00
147 $ 6,620 NAP 1 25 88 7 3.175 0.125 0.05 1.00
148 $ 6,329 NAP 1 25 88 7 3.175 0.125 0.05 1.00
149 $ 6,209 NAP 1 25 88 7 3.175 0.125 0.05 1.00
150 $ 6,024 NAP 1 25 88 7 3.175 0.125 0.05 1.00
151 $ 5,254 NAP 1 25 88 7 3.175 0.125 0.05 1.00
152 $ 5,197 NAP 1 25 88 7 3.175 0.125 0.05 1.00
153 $ 5,099 NAP 1 25 88 7 3.175 0.125 0.05 1.00
154 $ 4,361 NAP 1 25 88 7 3.175 0.125 0.05 1.00
155 $ 4,297 NAP 1 25 88 7 3.175 0.125 0.05 1.00
156 $ 3,811 NAP 1 25 88 7 3.175 0.125 0.05 1.00
157 $ 3,445 NAP 1 25 88 7 3.175 0.125 0.05 1.00
158 $ 3,178 NAP 1 25 88 7 3.175 0.125 0.05 1.00
159 $ 2,436 NAP 1 25 88 7 3.175 0.125 0.05 1.00
160 $ 2,166 NAP 1 25 88 7 3.175 0.125 0.05 1.00
161 $ 2,024 NAP 1 25 88 7 3.175 0.125 0.05 1.00
162 $ 1,872 NAP 1 25 88 7 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ---------------------------------- ------------ ---------- -------- --------- -------- --------- --------
163 MSMC U-Haul Mobile Hwy $ 276,567 06/08/2005 120 119 300 299 5.520%
000 XXXX Xxxxxxxx @ One Market $133,000,000 06/13/2005 120 119 IO IO 5.605%
000 XXXX Xxxxxxxx Center $129,709,589 05/11/2005 60 58 360 358 5.001%
000 XXXX Xxxxxxx Xxxxxxxxxxx $ 29,105,000 05/26/2005 60 58 IO IO 4.850%
000 XXXX Xxxxxxx Xxxxxxxxxxxx $ 21,829,000 05/26/2005 60 58 IO IO 4.850%
000 XXXX Xxxxxxx Xxxxxxx Xxxxxxx $ 17,661,000 05/26/2005 60 58 IO IO 4.850%
000 XXXX Xxxxxxx Xxxxxxxxxxx $ 14,155,000 05/26/2005 60 58 IO IO 4.850%
000 XXXX Xxxxxx Xxxx $ 49,000,000 06/01/2005 120 118 IO IO 5.370%
174 MSMC 0000 Xxxxxxx Xxxx Xxxxxx $ 44,717,294 03/17/2005 108 104 300 296 5.190%
000 XXXX Xxxxx Xxxxx xx Xxxxxxxxxx $ 28,000,000 06/10/2005 120 119 360 360 5.040%
000 XXXX Xxxxxxx Industrial $ 26,566,248 04/19/2005 120 117 360 357 5.280%
000 XXXX Xxxxxx Xxxx Xxxxxxxx Xxxxxx $ 26,442,934 05/05/2005 120 118 360 358 5.250%
000 XXXX Xxxxxxxxx Xxxxxxx $ 24,500,000 01/24/2005 120 113 360 360 5.410%
000 XXXX Xxxxxxx Xxxx $ 19,958,016 05/03/2005 120 118 360 358 5.370%
378 MSMC The Kenmawr Apartments $ 17,600,000 06/01/2005 120 119 360 360 5.510%
000 XXXX Xxxxxxx Xxxxxxxxx $ 17,400,000 04/07/2005 120 117 336 336 5.450%
000 XXXX Xxxxxxxxx Xxxxxxxxxx $ 17,250,000 04/15/2005 120 117 360 360 5.110%
000 XXXX Xxxxxxxxxxxx Xxxxxxx Xxxxxx $ 16,924,237 04/19/2005 120 117 300 297 5.410%
000 XXXX Xxxxxxxxx Xxxxxx I & II $ 16,500,000 12/21/2004 120 113 360 360 5.174%
385 MSMC McAllen Marketplace $ 16,400,000 03/29/2005 120 116 360 360 5.210%
386 MSMC Miramar Industrial $ 16,000,000 06/21/2005 60 59 IO IO 4.960%
000 XXXX Xxxxxxxxxx Xxxxxx Xxxxxx $ 15,750,000 05/10/2005 120 118 360 360 5.590%
Lenoxplace at Xxxxxx Station
392 MSMC Apartments $ 15,578,061 12/08/2004 120 113 360 353 5.300%
000 XXXX Xxxxxxxxxx Xxxxxx $ 15,500,000 06/01/2005 60 58 IO IO 4.900%
000 XXXX Xxxxxxx Xxx Apartments $ 15,000,000 03/30/2005 156 152 360 360 5.680%
000 XXXX Xxxxxxx Xxxxxx Xxxxxx $ 15,000,000 04/29/2005 120 117 360 360 5.640%
000 XXXX Xxxxxxxx xx Xxxxxx $ 14,403,050 01/13/2005 120 114 360 354 5.350%
000 XXXX Xxxxxxx Xxx Apartments $ 14,315,000 03/30/2005 156 152 360 360 5.680%
000 XXXX XX Retail Portfolio - $ 5,350,058 03/18/2005 120 116 360 356 5.520%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- -------- -------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
163 $ 1,704 NAP 1 25 88 7 3.175 0.125 0.05 1.00
164 NAP $629,849 1 25 91 4 3.175 0.125 0.05 1.00
165 $695,794 NAP 2 26 27 7 3.175 0.125 0.05 1.00
166 NAP $119,267 2 24 27 2 7 3.175 0.125 0.05 1.00
167 NAP $ 89,451 2 24 27 2 7 3.175 0.125 0.05 1.00
168 NAP $ 72,371 2 24 27 2 7 3.175 0.125 0.05 1.00
169 NAP $ 58,004 2 24 27 2 7 3.175 0.125 0.05 1.00
172 NAP $222,320 2 26 90 4 3.175 0.125 0.05 1.00
174 $268,071 NAP 4 28 75 5 3.175 0.125 0.05 1.00
179 $150,995 $119,233 1 25 91 4 3.175 0.125 0.05 1.00
180 $147,658 NAP 3 27 89 4 3.175 0.125 0.05 1.00
181 $146,334 NAP 2 26 90 4 3.175 0.125 0.05 1.00
374 $137,728 $111,988 7 31 85 4 3.175 0.125 0.05 1.00
376 $111,932 NAP 2 59 57 4 3.175 0.125 0.05 1.00
378 $100,041 $ 81,936 1 25 91 4 3.175 0.125 0.05 1.00
379 $101,075 $ 80,123 3 27 89 4 3.175 0.125 0.05 1.00
381 $ 93,765 $ 74,476 3 27 89 4 3.175 0.125 0.05 1.00
382 $103,483 NAP 3 27 86 7 3.175 0.125 0.05 1.00
384 $ 90,338 $ 72,131 7 31 85 4 3.175 0.125 0.05 1.00
385 $ 90,156 $ 72,192 4 59 57 4 3.175 0.125 0.05 1.00
386 NAP $ 67,052 1 25 28 7 8.175 0.125 0.05 1.00
391 $ 90,318 $ 74,388 2 26 90 4 3.175 0.125 0.05 1.00
392 $ 87,183 NAP 7 31 85 4 3.175 0.125 0.05 1.00
393 NAP $ 64,171 2 26 30 4 3.175 0.125 0.05 1.00
397 $ 86,870 $ 71,986 4 28 124 4 3.175 0.125 0.05 1.00
398 $ 86,491 $ 71,479 3 27 89 4 3.175 0.125 0.05 1.00
402 $ 80,970 NAP 6 30 86 4 3.175 0.125 0.05 1.00
403 $ 82,903 $ 68,699 4 28 124 4 3.175 0.125 0.05 1.00
404 $ 30,569 NAP 4 28 88 4 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ---------------------------------- ------------ ---------- -------- --------- -------- --------- --------
Walgreens Xxxxx
NE Retail Portfolio - Walgreens
405 MSMC Haverhill $ 5,099,087 03/18/2005 120 116 360 356 5.520%
NE Retail Portfolio - Eckerd
406 MSMC Niskayuna $ 3,465,786 03/18/2005 120 116 360 356 5.520%
000 XXXX Xxxxxxxx Xxxxx $13,550,000 11/29/2004 120 112 360 360 5.240%
409 MSMC Ambassador Hotel $13,481,036 06/16/2005 60 59 300 299 5.500%
000 XXXX Xxxxx Xxxxxxxxx Retail $12,945,868 03/10/2005 120 116 360 356 5.430%
000 XXXX Xxxxxxxxxx Farms Apartments $12,402,915 12/08/2004 120 113 360 353 5.300%
418 MSMC 000 Xxxx Xxxx Xxxxxxxxx $11,410,000 05/04/2005 120 118 360 360 5.580%
000 XXXX Xxxx Xxxxxx Xxxxxx $10,976,612 05/18/2005 120 118 360 358 5.310%
420 MSMC Foundation Surgery Center $10,956,691 03/21/2005 120 116 360 356 5.690%
000 XXXX Xxxxxxxxx Xxxxxxx Apartments $10,850,000 03/09/2005 120 116 324 324 5.490%
422 MSMC 0000 Xxxxxxxx Xxxx. $10,489,360 06/08/2005 120 119 360 359 5.200%
000 XXXX Xxxxxxxxx Xxxxxx $10,300,000 06/03/2005 120 119 360 360 5.470%
000 XXXX Xxxxxxx Xxxxx $10,085,921 07/27/2004 120 108 360 348 6.100%
425 MSMC 00 Xxxxx Xxxx Xxxx $ 9,878,316 06/30/2005 120 119 270 269 5.650%
000 XXXX Xxxx/Xxxx Xxxxxxxx Retail $ 9,279,095 12/15/2004 120 113 360 353 5.420%
429 MSMC Hilton Garden Inn $ 9,074,229 05/19/2005 120 118 300 298 5.780%
000 XXXX Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx $ 9,050,000 03/03/2005 120 116 360 360 5.360%
000 XXXX Xxxxx Xxx Xxxxx $ 8,800,000 04/13/2005 120 117 360 360 5.320%
000 XXXX Xxxxxxxx Xxxxxx $ 8,076,026 05/06/2005 120 118 300 298 5.520%
436 MSMC 000 Xxxxxx Xxxxxx $ 7,801,639 01/27/2005 120 114 360 354 5.770%
437 MSMC Walgreens - Marina Del Rey $ 7,700,000 01/26/2005 120 114 360 360 5.380%
438 MSMC Suburban Extended Stay Portfolio - $ 3,885,679 04/27/2005 120 117 300 297 6.490%
Daytona
439 MSMC Suburban Extended Stay Portfolio - $ 3,586,780 04/27/2005 120 117 300 297 6.490%
Melbourne
440 MSMC 000 Xxxx Xxxxxxx Xxxxxxx $ 7,040,000 05/06/2005 60 58 360 360 4.690%
442 MSMC Seven Corners Medical Campus $ 6,984,605 05/02/2005 120 118 360 358 5.150%
443 MSMC 000 Xxxx Xxxx Xxxxxx $ 6,971,531 03/21/2005 60 56 360 356 5.540%
000 XXXX Xxxxxxxxxx Xxxxxx $ 6,947,128 12/21/2004 120 113 360 353 5.440%
000 XXXX Xxxx Xxxx Xxxxxxx Xxxxxx $ 6,571,986 03/17/2005 120 116 360 356 5.340%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- -------- -------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
405 $ 29,135 NAP 4 28 88 4 3.175 0.125 0.05 1.00
406 $ 19,803 NAP 4 28 88 4 3.175 0.125 0.05 1.00
407 $ 74,740 $59,990 8 32 83 5 13.175 0.125 0.05 1.00
409 $ 82,902 NAP 1 25 31 4 3.175 0.125 0.05 1.00
415 $ 73,243 NAP 4 28 88 4 3.175 0.125 0.05 1.00
416 $ 69,413 NAP 7 31 85 4 3.175 0.125 0.05 1.00
418 $ 65,359 $53,793 2 26 90 4 3.175 0.125 0.05 1.00
419 $ 61,152 NAP 2 26 84 10 3.175 0.125 0.05 1.00
420 $ 63,774 NAP 4 28 88 4 3.175 0.125 0.05 1.00
421 $ 64,289 $50,328 4 28 88 4 3.175 0.125 0.05 1.00
422 $ 57,657 NAP 1 25 91 4 3.175 0.125 0.05 1.00
423 $ 58,289 $47,603 1 25 91 4 3.175 0.125 0.05 1.00
424 $ 61,811 NAP 12 36 80 4 8.175 0.125 0.05 1.00
425 $ 64,826 NAP 1 25 70 25 3.175 0.125 0.05 1.00
427 $ 52,620 NAP 7 31 84 5 3.175 0.125 0.05 1.00
429 $ 57,414 NAP 2 26 87 7 3.175 0.125 0.05 1.00
430 $ 50,593 $40,985 4 28 88 4 13.175 0.125 0.05 1.00
432 $ 48,976 $39,555 3 27 89 4 3.175 0.125 0.05 1.00
435 $ 49,838 NAP 2 26 90 4 3.175 0.125 0.05 1.00
436 $ 45,910 NAP 6 30 86 4 3.175 0.125 0.05 1.00
437 $ 43,142 $35,001 6 30 89 1 3.175 0.125 0.05 1.00
438 $ 26,309 NAP 3 27 89 4 3.175 0.125 0.05 1.00
439 $ 24,285 NAP 3 27 89 4 3.175 0.125 0.05 1.00
440 $ 36,470 $27,897 2 26 30 4 3.175 0.125 0.05 1.00
442 $ 38,222 NAP 2 26 81 13 3.175 0.125 0.05 1.00
443 $ 39,921 NAP 4 28 28 4 3.175 0.125 0.05 1.00
444 $ 39,482 NAP 7 31 85 4 3.175 0.125 0.05 1.00
446 $ 36,814 NAP 4 28 88 4 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ---------------------------------- ---------- ---------- -------- --------- -------- --------- --------
000 XXXX Xxxxx Xxxxx Xxxxxxxx Xxxxxx $6,520,000 04/04/2005 120 117 360 360 5.860%
449 MSMC 000 Xxxxxxx Xxxx Xxxx $6,351,563 12/02/2004 120 113 360 353 5.430%
000 XXXX Xxxxxxx Xxxxxxxx Xxxxxx $5,908,000 04/21/2005 120 117 360 360 5.290%
000 XXXX Xxxxxxxx Xxxxxxxxx Inn and Suites $5,835,153 05/03/2005 120 118 300 298 6.410%
000 XXXX Xxxxxxx Xxxxxx $5,695,674 04/21/2005 120 117 360 357 5.440%
000 XXXX Xxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxx $5,672,092 02/25/2005 180 175 360 355 5.650%
461 MSMC Xxxxxx Eye Institute Medical $5,400,000 03/22/2005 120 116 360 360 5.560%
Building
000 XXXX Xxxx Xxxxx Xxxxxx $5,100,000 01/11/2005 120 114 360 360 5.490%
000 XXXX Xxxxxxx Xxxxx Xxxxxxx Xxxxxx $5,040,000 02/08/2005 120 115 360 360 5.400%
000 XXXX Xxxxx Xxxx Xxxxxxx $4,986,572 04/07/2005 120 117 360 357 5.970%
000 XXXX Xxx Xxxxxxxx Xxxxx $4,974,859 02/02/2005 120 115 360 355 5.530%
000 XXXX Xxxxxxx Xxxxx $4,784,714 04/19/2005 120 117 360 357 5.220%
473 MSMC Shops at Lakeline Village $4,640,000 03/24/2005 120 116 360 360 5.320%
000 XXXX 000xx Xx. Family Center $4,620,555 03/09/2005 120 116 360 356 5.400%
475 MSMC Rutgers Student Housing - 82 Louis $1,181,658 04/28/2005 120 117 300 297 5.250%
Xxxxxx
000 XXXX Xxxxxxx Student Housing - 260 $ 812,390 04/28/2005 120 117 300 297 5.250%
Xxxxxxxx Xxxxxx
000 XXXX Xxxxxxx Student Housing - 211 $ 738,537 04/28/2005 120 117 300 297 5.250%
Xxxxxxxx Xxxxxx
000 XXXX Xxxxxxx Student Housing - 37 Duke $ 701,610 04/28/2005 120 117 300 297 5.250%
Street
479 MSMC Rutgers Student Housing - 80 $ 701,610 04/28/2005 120 117 300 297 5.250%
Xxxxxxx Xxxxxx
000 XXXX Xxxxxxx Student Housing - 172 $ 443,122 04/28/2005 120 117 300 297 5.250%
Xxxxxx Xxxxxx
000 XXXX 0000 Xxxxxx Xxxxxx $4,560,000 03/01/2005 120 116 360 360 5.350%
000 XXXX Xxxxxxxxxx Xxxxxx $4,470,374 01/27/2005 120 114 360 354 5.430%
000 XXXX Xxxxxxx Xxxx Xxxxx $4,468,000 02/10/2005 120 115 360 360 5.400%
000 XXXX Xxxxx Xxxxxx Plaza $4,400,000 04/21/2005 120 117 360 360 5.500%
486 MSMC Brockton Apartments $4,386,953 04/29/2005 120 117 360 357 5.540%
487 MSMC 2705 South Industrial Offices $4,240,000 03/24/2005 120 116 360 360 5.730%
488 MSMC The Xxxxxx Apartments $4,166,458 05/13/2005 120 118 360 358 5.490%
000 XXXX Xxxxxxx Xxxxxx Xxxxxx $4,150,000 04/25/2005 120 117 360 360 5.640%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
447 $38,506 $32,282 3 27 89 4 3.175 0.125 0.05 1.00
449 $36,058 NAP 7 31 85 4 3.175 0.125 0.05 1.00
454 $32,771 $26,406 3 27 89 4 3.175 0.125 0.05 1.00
455 $39,171 NAP 2 26 90 4 3.175 0.125 0.05 1.00
457 $32,223 NAP 3 27 89 4 3.175 0.125 0.05 1.00
459 $32,902 NAP 5 29 147 4 3.175 0.125 0.05 1.00
461 $30,864 $25,368 4 28 88 4 3.175 0.125 0.05 1.00
466 $28,925 $23,657 6 30 86 4 3.175 0.125 0.05 1.00
467 $28,301 $22,995 5 29 87 4 3.175 0.125 0.05 1.00
468 $29,881 NAP 3 27 89 4 3.175 0.125 0.05 1.00
469 $28,484 NAP 5 29 87 4 3.175 0.125 0.05 1.00
472 $26,417 NAP 3 27 89 4 3.175 0.125 0.05 1.00
473 $25,824 $20,856 4 28 88 4 3.175 0.125 0.05 1.00
474 $26,055 NAP 4 28 88 4 3.175 0.125 0.05 1.00
475 $ 7,114 NAP 3 27 89 4 13.175 0.125 0.05 1.00
476 $ 4,891 NAP 3 27 89 4 13.175 0.125 0.05 1.00
477 $ 4,446 NAP 3 27 89 4 13.175 0.125 0.05 1.00
478 $ 4,224 NAP 3 27 89 4 13.175 0.125 0.05 1.00
479 $ 4,224 NAP 3 27 89 4 13.175 0.125 0.05 1.00
480 $ 2,668 NAP 3 27 89 4 13.175 0.125 0.05 1.00
481 $25,464 $20,612 4 28 85 7 3.175 0.125 0.05 1.00
483 $25,353 NAP 6 30 83 7 3.175 0.125 0.05 1.00
484 $25,089 $20,385 5 29 87 4 3.175 0.125 0.05 1.00
485 $24,983 $20,447 3 27 89 4 3.175 0.125 0.05 1.00
486 $25,093 NAP 3 27 89 4 3.175 0.125 0.05 1.00
487 $24,690 $20,527 4 28 88 4 8.175 0.125 0.05 1.00
488 $23,679 NAP 2 26 90 4 3.175 0.125 0.05 1.00
489 $23,929 $19,776 3 27 89 4 13.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ---------------------------------- ---------- ---------- -------- --------- -------- --------- --------
490 MSMC Shoppes at Macungie $4,000,000 04/21/2005 120 117 360 360 5.390%
492 MSMC Right Track Self Storage $3,837,358 04/21/2005 120 117 360 357 5.080%
000 XXXX Xxxxxxxxx Xxxxxxx Xxxx Building $3,780,935 02/04/2005 120 115 360 355 5.540%
495 MSMC Hy-Vee Plaza $3,742,540 05/19/2005 120 118 360 358 5.620%
000 XXXX XX Self Storage Portfolio - Xxxxxx $1,891,851 04/29/2005 60 57 300 297 5.630%
000 XXXX XX Self Storage Portfolio - Laredo $1,742,494 04/29/2005 60 57 300 297 5.630%
000 XXXX Xxxxxxx Xxxxx Xxxxx $3,625,000 06/06/2005 120 119 360 360 5.580%
000 XXXX Xxxxxxx Xxxx Xxxxxxxx Xxxxxx $3,590,286 04/05/2005 120 117 360 357 5.950%
000 XXXX Xxxxxxxx Xxxxxx Xxxxxx $3,486,190 03/17/2005 120 116 360 356 5.680%
000 XXXX Xxxxxx Xxxxx $3,460,000 05/04/2005 120 118 360 360 5.220%
000 XXXX Xxxx Xxxxx $3,283,223 02/23/2005 120 115 360 355 5.480%
000 XXXX Xxxxxxxxxx Xxxx Plaza $3,268,000 03/31/2005 60 56 360 360 5.680%
517 MSMC CVS Baton Rouge $3,065,554 12/29/2004 120 113 300 293 5.290%
520 MSMC Friendship Arms Apartments $2,988,645 03/29/2005 60 56 360 356 5.870%
000 XXXX Xxxxx Xxxxxxxx Xxxxx $2,984,580 02/03/2005 120 115 360 355 5.430%
000 XXXX Xxxxx Xx. Xxxx'x Xxxxx Apartments $2,938,586 03/31/2005 120 116 360 356 5.770%
000 XXXX Xxxxx Xxxxxxxx Xxxxxx $2,782,614 02/28/2005 120 115 324 319 5.610%
527 MSMC 0000 Xxxxx Xxxxxx $2,768,426 08/09/2004 120 109 360 349 5.680%
530 MSMC CVS Kenner $2,571,019 12/30/2004 120 113 300 293 5.270%
000 XXXX Xxxx Xxx-Xxxxxxxxxx, XX $2,246,332 03/21/2005 120 116 360 356 5.800%
535 MSMC Space Coast Resort $2,245,563 05/10/2005 120 118 360 358 5.660%
000 XXXX Xxxxxxx Villas $2,153,753 04/04/2005 120 117 360 357 5.650%
000 XXXX Xxxxxxxx Xxxxx $2,042,253 01/07/2005 120 114 360 354 5.350%
000 XXXX X-0 Xxxxx $1,882,896 10/19/2004 120 111 360 351 5.800%
543 MSMC Shops at Greenvalley $1,796,262 05/26/2005 120 118 360 358 5.420%
000 XXXX 000 Xxxx Xxxxxxxx Xxxx Xxxxxx $1,561,013 01/14/2005 120 114 300 294 5.800%
Building
000 XXXX Xxxxx Xxxx Xxxxxxxx Xxxxxx $1,269,680 03/17/2005 120 116 360 356 5.420%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
490 $22,436 $18,216 3 27 89 4 3.175 0.125 0.05 1.00
492 $20,856 NAP 3 27 89 4 3.175 0.125 0.05 1.00
493 $21,671 NAP 5 29 87 4 3.175 0.125 0.05 1.00
495 $21,575 NAP 2 26 90 4 13.175 0.125 0.05 1.00
497 $11,816 NAP 3 27 29 4 3.175 0.125 0.05 1.00
498 $10,883 NAP 3 27 29 4 3.175 0.125 0.05 1.00
499 $20,765 $17,090 1 25 91 4 3.175 0.125 0.05 1.00
501 $21,468 NAP 3 27 89 4 3.175 0.125 0.05 1.00
502 $20,270 NAP 4 28 88 4 3.175 0.125 0.05 1.00
503 $19,042 $15,260 2 26 90 4 3.175 0.125 0.05 1.00
506 $18,696 NAP 5 29 87 4 13.175 0.125 0.05 1.00
507 $18,926 $15,683 4 28 28 4 3.175 0.125 0.05 1.00
517 $18,650 NAP 7 31 85 4 3.175 0.125 0.05 1.00
520 $17,737 NAP 4 28 28 4 3.175 0.125 0.05 1.00
521 $16,902 NAP 5 29 87 4 3.175 0.125 0.05 1.00
524 $17,253 NAP 4 28 88 4 3.175 0.125 0.05 1.00
526 $16,796 NAP 5 29 87 4 13.175 0.125 0.05 1.00
527 $16,216 NAP 11 35 81 4 3.175 0.125 0.05 1.00
530 $15,611 NAP 7 31 85 4 3.175 0.125 0.05 1.00
534 $13,231 NAP 4 28 88 4 3.175 0.125 0.05 1.00
535 $13,002 NAP 2 26 90 4 3.175 0.125 0.05 1.00
536 $12,468 NAP 3 27 89 4 3.175 0.125 0.05 1.00
537 $11,481 NAP 6 30 86 4 3.175 0.125 0.05 1.00
540 $11,148 NAP 9 59 57 4 3.175 0.125 0.05 1.00
543 $10,130 NAP 2 26 90 4 3.175 0.125 0.05 1.00
548 $ 9,956 NAP 6 30 86 4 3.175 0.125 0.05 1.00
549 $ 7,175 NAP 4 28 85 7 3.175 0.125 0.05 1.00
</TABLE>
SCHEDULE II
PMCF LOAN SCHEDULE
MSCI 2005-HQ6
LOAN SCHEDULE
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- -------------------------------- ----------- ---------- -------- --------- -------- --------- --------
171 PMCF Oviedo Marketplace $54,820,774 04/25/2005 84 81 360 357 5.115%
000 XXXX Xxxxxxxxx Xxxxxxx $36,000,000 04/29/2005 60 57 IO IO 5.250%
000 XXXX Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx $19,979,733 07/01/2005 120 119 360 359 5.200%
000 XXXX Xxxxxxx Xxxxxxx $16,800,000 05/13/2005 120 118 360 360 5.340%
000 XXXX Xxxxxxxx Xxxxxx Xxxxxxxxxx $ 6,712,107 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx xxx Xxxxxx Xxxxxxxx $ 4,380,533 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx Xxxxxxx $ 2,896,804 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx Xxxxxxx $ 1,978,305 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx Xxxxxxxxxx - Xxxxxxx $ 8,419,734 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx Xxxxxxxx Xxxx $ 4,654,813 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx XxXxxxx $ 2,258,953 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxxxxxxx Xxxx $ 5,026,516 06/28/2005 120 119 259 259 5.820%
000 XXXX Xxxxxxx Xxx Xxxxxxxxxx $ 4,874,197 06/28/2005 120 119 259 259 5.820%
401 PMCF Hampton Inn Kalamazoo $ 4,798,038 06/28/2005 120 119 259 259 5.820%
408 PMCF HK Tower $13,486,155 06/16/2005 120 119 360 359 5.150%
414 PMCF Mediterranean Inn $13,232,351 06/30/2005 120 119 300 299 5.780%
000 XXXX Xxxx Xxxxx Crossing $ 6,993,126 06/17/2005 120 119 360 359 5.330%
450 PMCF Attic IV Self Storage $ 3,318,750 07/07/2005 120 120 300 300 5.650%
451 PMCF Attic V Self Storage $ 3,000,000 07/07/2005 120 120 300 300 5.650%
462 PMCF 00000 Xxx Xxxx Xxxx. $ 5,344,434 06/30/2005 120 119 360 359 5.090%
000 XXXX Xxxxxxxxxxxx Xxxxxx Xxxx $ 5,290,000 07/14/2005 120 120 360 360 5.300%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- -------- -------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
171 $299,130 NAP 3 28 49 7 2.175 0.125 0.05 0.00
177 NAP $159,688 3 23 35 2 2.175 0.125 0.05 0.00
375 $109,822 NAP 1 26 90 4 7.175 0.125 0.05 0.00
383 $ 93,709 $ 75,798 2 27 91 2 7.175 0.125 0.05 0.00
387 $ 45,569 $ 33,006 1 26 90 4 9.175 0.125 0.05 0.00
388 $ 29,740 $ 21,541 1 26 90 4 9.175 0.125 0.05 0.00
389 $ 19,667 $ 14,245 1 26 90 4 9.175 0.125 0.05 0.00
390 $ 13,431 $ 9,728 1 26 90 4 9.175 0.125 0.05 0.00
394 $ 57,162 $ 41,403 1 26 90 4 9.175 0.125 0.05 0.00
395 $ 31,602 $ 22,889 1 26 90 4 9.175 0.125 0.05 0.00
396 $ 15,336 $ 11,108 1 26 90 4 9.175 0.125 0.05 0.00
399 $ 34,125 $ 24,717 1 26 90 4 9.175 0.125 0.05 0.00
400 $ 33,091 $ 23,968 1 26 90 4 9.175 0.125 0.05 0.00
401 $ 32,574 $ 23,594 1 26 90 4 9.175 0.125 0.05 0.00
408 $ 73,714 NAP 1 47 69 4 2.175 0.125 0.05 0.00
414 $ 83,597 NAP 1 26 87 7 7.175 0.125 0.05 0.00
441 $ 39,002 NAP 1 26 90 4 7.175 0.125 0.05 0.00
450 $ 20,678 NAP 0 25 88 7 2.175 0.125 0.05 0.00
451 $ 18,692 NAP 0 25 88 7 2.175 0.125 0.05 0.00
462 $ 29,015 NAP 1 26 90 4 2.175 0.125 0.05 0.00
463 $ 29,376 NAP 0 25 91 4 7.175 0.125 0.05 0.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- -------------------------- ---------- ---------- -------- --------- -------- --------- --------
470 PMCF Attic III Self Storage $4,900,000 07/07/2005 120 120 300 300 5.650%
471 PMCF South Pacific Apartments $4,795,264 06/16/2005 120 119 360 359 5.310%
000 XXXX Xxxxxxx Xxxxxxx Apartments $4,500,000 06/17/2005 120 119 360 360 5.260%
491 PMCF Colonial Apartments $3,889,203 04/27/2005 120 117 360 357 5.840%
494 PMCF Attic IX Self Storage $3,768,750 07/07/2005 120 120 300 300 5.650%
525 PMCF Attic I Self Storage $2,875,000 07/07/2005 120 120 300 300 5.650%
529 PMCF Attic VI Self Storage $2,575,000 07/07/2005 120 120 300 300 5.650%
532 PMCF Attic II Self Storage $2,287,500 07/07/2005 120 120 300 300 5.650%
542 PMCF Attic VIII Self Storage $1,837,500 07/07/2005 120 120 300 300 5.650%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
470 $30,531 NAP 0 25 88 7 2.175 0.125 0.05 0.00
471 $26,684 NAP 1 26 90 4 2.175 0.125 0.05 0.00
482 $24,877 $19,999 1 26 90 4 7.175 0.125 0.05 0.00
491 $22,983 NAP 3 28 88 4 2.175 0.125 0.05 0.00
494 $23,482 NAP 0 25 88 7 2.175 0.125 0.05 0.00
525 $17,913 NAP 0 25 88 7 2.175 0.125 0.05 0.00
529 $16,044 NAP 0 25 88 7 2.175 0.125 0.05 0.00
532 $14,253 NAP 0 25 88 7 2.175 0.125 0.05 0.00
542 $11,449 NAP 0 25 88 7 2.175 0.125 0.05 0.00
</TABLE>
SCHEDULE III
XXXXX LOAN SCHEDULE
MSCI 2005-HQ6
LOAN SCHEDULE
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------------- ----------- ---------- -------- --------- -------- --------- --------
000 XXX Xxxxxxxxxxx Xxxx Center $58,000,000 07/11/2005 60 60 IO IO 5.295%
000 XXX Xxxxxxxxx Xxxxxxxx $47,580,000 07/11/2005 60 60 IO IO 5.295%
000 XXX Xxxx Xxxx Phase I $40,750,000 07/06/2005 120 120 360 360 5.225%
176 WFB Xxxxx Promenade $36,100,000 07/11/2005 60 60 IO IO 5.295%
000 XXX Xxxxx Xxxxx $29,400,000 07/11/2005 60 60 IO IO 5.295%
182 WFB FRIS Chkn, LLC A-Note - CFC-00286 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $ 129,703 04/12/2005 120 117 300 297 6.190%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- -------- -------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
170 NAP $259,480 0 24 32 4 3.175 0.125 0.05 1.00
173 NAP $212,863 0 24 32 4 3.175 0.125 0.05 1.00
175 $224,392 $179,897 0 24 92 4 3.175 0.125 0.05 1.00
176 NAP $161,504 0 24 32 4 3.175 0.125 0.05 1.00
178 NAP $131,529 0 24 32 4 3.175 0.125 0.05 1.00
182 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
183 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
184 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
185 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
186 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
187 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
188 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
189 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
190 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
191 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
192 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
193 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
194 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
195 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
196 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
197 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
198 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
199 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
200 $ 854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------------- ----------- ---------- -------- --------- -------- --------- --------
201 WFB FRIS Chkn, LLC A-Note - CFC-00457 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- -------- -------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
201 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
202 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
203 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
204 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
205 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
206 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
207 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
208 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
209 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
210 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
211 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
212 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
213 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
214 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
215 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
216 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
217 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
218 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
219 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
220 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
221 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
222 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
223 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
224 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
225 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
226 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
227 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
228 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
229 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------------- -------- ---------- -------- --------- -------- --------- --------
230 WFB FRIS Chkn, LLC A-Note - CFC-00709 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
230 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
231 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
232 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
233 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
234 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
235 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
236 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
237 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
238 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
239 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
240 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
241 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
242 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
243 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
244 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
245 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
246 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
247 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
248 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
249 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
250 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
251 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
252 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
253 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
254 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
255 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
256 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
257 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
258 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------------- -------- ---------- -------- --------- -------- --------- --------
259 WFB FRIS Chkn, LLC A-Note - CFC-00919 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
259 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
260 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
261 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
262 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
263 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
264 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
265 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
266 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
267 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
268 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
269 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
270 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
271 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
272 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
273 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
274 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
275 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
276 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
277 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
278 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
279 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
280 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
281 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
282 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
283 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
284 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
285 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
286 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
287 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------------- -------- ---------- -------- --------- -------- --------- --------
288 WFB FRIS Chkn, LLC A-Note - CFC-01296 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
288 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
289 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
290 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
291 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
292 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
293 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
294 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
295 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
296 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
297 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
298 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
299 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
300 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
301 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
302 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
303 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
304 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
305 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
306 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
307 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
308 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
309 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
310 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
311 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
312 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
313 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
314 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
315 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
316 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- --------------------------------- -------- ---------- -------- --------- -------- --------- --------
317 WFB FRIS Chkn, LLC A-Note - CFC-01675 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
000 XXX XXXX Xxxx, XXX X-Xxxx - XXX-00000 $129,703 04/12/2005 120 117 300 297 6.190%
MONTHLY MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
317 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
318 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
319 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
320 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
321 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
322 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
323 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
324 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
325 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
326 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
327 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
328 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
329 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
330 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
331 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
332 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
333 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
334 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
335 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
336 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
337 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
338 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
339 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
340 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
341 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
342 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
343 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
344 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
345 $854 NAP 3 36 80 4 20.175 0.125 0.05 18.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY
-------- -------- --------------------------------------- ----------- ---------- -------- ---------
346 WFB FRIS Chkn, LLC A-Note - CFC-00031 $ 129,703 04/12/2005 120 117
347 WFB FRIS Chkn, LLC A-Note - CFC-00034 $ 129,703 04/12/2005 120 117
348 WFB FRIS Chkn, LLC A-Note - CFC-00048 $ 129,703 04/12/2005 120 117
349 WFB FRIS Chkn, LLC A-Note - CFC-00055 $ 129,703 04/12/2005 120 117
350 WFB FRIS Chkn, LLC A-Note - CFC-00056 $ 129,703 04/12/2005 120 117
351 WFB FRIS Chkn, LLC A-Note - CFC-00057 $ 129,703 04/12/2005 120 117
352 WFB FRIS Chkn, LLC A-Note - CFC-00068 $ 129,703 04/12/2005 120 117
353 WFB FRIS Chkn, LLC A-Note - CFC-00073 $ 129,703 04/12/2005 120 117
354 WFB FRIS Chkn, LLC A-Note - CFC-00080 $ 129,703 04/12/2005 120 117
355 WFB FRIS Chkn, LLC A-Note - CFC-00087 $ 129,703 04/12/2005 120 117
356 WFB FRIS Chkn, LLC A-Note - CFC-00127 $ 129,703 04/12/2005 120 117
357 WFB FRIS Chkn, LLC A-Note - CFC-00129 $ 129,703 04/12/2005 120 117
358 WFB FRIS Chkn, LLC A-Note - CFC-00131 $ 129,703 04/12/2005 120 117
359 WFB FRIS Chkn, LLC A-Note - CFC-00136 $ 129,703 04/12/2005 120 117
360 WFB FRIS Chkn, LLC A-Note - CFC-00142 $ 129,703 04/12/2005 120 117
361 WFB FRIS Chkn, LLC A-Note - CFC-00145 $ 129,703 04/12/2005 120 117
362 WFB FRIS Chkn, LLC A-Note - CFC-00168 $ 129,703 04/12/2005 120 117
363 WFB FRIS Chkn, LLC A-Note - CFC-00173 $ 129,703 04/12/2005 120 117
364 WFB FRIS Chkn, LLC A-Note - CFC-00190 $ 129,703 04/12/2005 120 117
365 WFB FRIS Chkn, LLC A-Note - CFC-00193 $ 129,703 04/12/2005 120 117
366 WFB FRIS Chkn, LLC A-Note - CFC-00196 $ 129,703 04/12/2005 120 117
367 WFB FRIS Chkn, LLC A-Note - CFC-00197 $ 129,703 04/12/2005 120 117
368 WFB FRIS Chkn, LLC A-Note - CFC-00199 $ 129,703 04/12/2005 120 117
369 WFB FRIS Chkn, LLC A-Note - CFC-00217 $ 129,703 04/12/2005 120 117
370 WFB FRIS Chkn, LLC A-Note - CFC-00236 $ 129,703 04/12/2005 120 117
371 WFB FRIS Chkn, LLC A-Note - CFC-00239 $ 129,703 04/12/2005 120 117
372 WFB FRIS Chkn, LLC A-Note - CFC-00254 $ 129,703 04/12/2005 120 117
373 WFB FRIS Chkn, LLC A-Note - CFC-00283 $ 129,703 04/12/2005 120 117
377 WFB Naperville Plaza Shopping Center $17,962,616 06/01/2005 120 118
ORIGINAL REMAINING MONTHLY MONTHLY PREPAYMENT CODE
MORTGAGE AMORT. AMORT. MORTGAGE PAYMENT PAYMENT ----------------------------------
LOAN NO. TERM TERM RATE (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN
-------- -------- --------- -------- -------- ------- --------- -- --- ---------- --- -- ----
346 300 297 6.190% $ 854 NAP 3 36 80 4
347 300 297 6.190% $ 854 NAP 3 36 80 4
348 300 297 6.190% $ 854 NAP 3 36 80 4
349 300 297 6.190% $ 854 NAP 3 36 80 4
350 300 297 6.190% $ 854 NAP 3 36 80 4
351 300 297 6.190% $ 854 NAP 3 36 80 4
352 300 297 6.190% $ 854 NAP 3 36 80 4
353 300 297 6.190% $ 854 NAP 3 36 80 4
354 300 297 6.190% $ 854 NAP 3 36 80 4
355 300 297 6.190% $ 854 NAP 3 36 80 4
356 300 297 6.190% $ 854 NAP 3 36 80 4
357 300 297 6.190% $ 854 NAP 3 36 80 4
358 300 297 6.190% $ 854 NAP 3 36 80 4
359 300 297 6.190% $ 854 NAP 3 36 80 4
360 300 297 6.190% $ 854 NAP 3 36 80 4
361 300 297 6.190% $ 854 NAP 3 36 80 4
362 300 297 6.190% $ 854 NAP 3 36 80 4
363 300 297 6.190% $ 854 NAP 3 36 80 4
364 300 297 6.190% $ 854 NAP 3 36 80 4
365 300 297 6.190% $ 854 NAP 3 36 80 4
366 300 297 6.190% $ 854 NAP 3 36 80 4
367 300 297 6.190% $ 854 NAP 3 36 80 4
368 300 297 6.190% $ 854 NAP 3 36 80 4
369 300 297 6.190% $ 854 NAP 3 36 80 4
370 300 297 6.190% $ 854 NAP 3 36 80 4
371 300 297 6.190% $ 854 NAP 3 36 80 4
372 300 297 6.190% $ 854 NAP 3 36 80 4
373 300 297 6.190% $ 854 NAP 3 36 80 4
377 360 358 5.420% $101,300 NAP 2 26 87 7
TRUSTEE PAR EXCESS
MORTGAGE ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. COST RATE RATE FEE FEE RATE
-------- -------------- ------- --------- ---------
346 20.175 0.125 0.05 18.00
347 20.175 0.125 0.05 18.00
348 20.175 0.125 0.05 18.00
349 20.175 0.125 0.05 18.00
350 20.175 0.125 0.05 18.00
351 20.175 0.125 0.05 18.00
352 20.175 0.125 0.05 18.00
353 20.175 0.125 0.05 18.00
354 20.175 0.125 0.05 18.00
355 20.175 0.125 0.05 18.00
356 20.175 0.125 0.05 18.00
357 20.175 0.125 0.05 18.00
358 20.175 0.125 0.05 18.00
359 20.175 0.125 0.05 18.00
360 20.175 0.125 0.05 18.00
361 20.175 0.125 0.05 18.00
362 20.175 0.125 0.05 18.00
363 20.175 0.125 0.05 18.00
364 20.175 0.125 0.05 18.00
365 20.175 0.125 0.05 18.00
366 20.175 0.125 0.05 18.00
367 20.175 0.125 0.05 18.00
368 20.175 0.125 0.05 18.00
369 20.175 0.125 0.05 18.00
370 20.175 0.125 0.05 18.00
371 20.175 0.125 0.05 18.00
372 20.175 0.125 0.05 18.00
373 20.175 0.125 0.05 18.00
377 3.175 0.125 0.05 1.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING
MORTGAGE LOAN DATE TERM TO TERM TO
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY
-------- -------- --------------------------------------- ----------- ---------- -------- ---------
410 WFB Zilber Office Portfolio - Tower $ 4,190,381 06/03/2005 120 119
Executive Office Building
411 WFB Zilber Office Portfolio - Criticare $ 3,566,813 06/03/2005 120 119
412 WFB Zilber Office Portfolio - Park Plaza $ 3,541,870 06/03/2005 120 119
413 WFB Zilber Office Portfolio - Mayfair $ 2,170,019 06/03/2005 120 119
Corporate Center
000 XXX XxxxXxxxxx Xxxxxxx $11,711,334 04/15/2005 120 117
426 WFB Basin Street Town Center $ 9,740,332 06/29/2005 120 119
431 WFB San Leandro Center $ 9,020,723 03/04/2005 120 116
445 WFB Best Western Hotel JTB/Southpoint $ 6,841,262 05/12/2005 120 118
448 WFB TownCentre Office and Executive Suites $ 6,479,072 04/15/2005 120 117
452 WFB Tinley Crossings Corporate Center $ 6,275,000 09/20/2004 120 110
453 WFB Harbor Business Center $ 6,038,173 05/10/2005 120 118
456 WFB ACCO Airport Center $ 5,700,000 01/19/2005 120 115
458 WFB Xxxxxxx'x - Xxxx Drive $ 5,683,814 04/06/2005 120 117
460 WFB TownCentre Plaza $ 5,581,970 04/11/2005 120 117
464 WFB Rocklin Properties - Rocklin Industrial $ 2,730,354 05/04/2005 60 58
465 WFB Rocklin Properties - Rocklin Retail $ 2,519,646 05/04/2005 60 58
496 WFB 0000 Xxxxxxx Xxxxxx Xxxxxx $ 3,692,381 05/12/2005 120 118
500 WFB The Shoppes at Athenry $ 3,604,257 04/21/2005 120 117
504 WFB Xxxxxxx X.X. Maxx $ 3,446,587 06/08/2005 120 119
505 WFB Xxxxxxx Bed Bath and Beyond $ 3,421,612 06/08/2005 120 119
508 WFB Dollar General S. Texas Portfolio (Pool $ 519,291 06/15/2005 120 119
8) - Coldspring
509 WFB Dollar General S. Texas Portfolio (Pool $ 494,325 06/15/2005 120 119
8) - Texas City Magnolia
510 WFB Dollar General S. Texas Portfolio (Pool $ 494,325 06/15/2005 120 119
8) - Dollar General Texas City
511 WFB Dollar General S. Texas Portfolio (Pool $ 439,400 06/15/2005 120 119
8) - Beaumont
512 WFB Dollar General S. Texas Portfolio (Pool $ 439,400 06/15/2005 120 119
8) - Brownsville
513 WFB Dollar General S. Texas Portfolio (Pool $ 439,400 06/15/2005 120 119
8) - Mission
ORIGINAL REMAINING MONTHLY MONTHLY PREPAYMENT CODE
MORTGAGE AMORT. AMORT. MORTGAGE PAYMENT PAYMENT ----------------------------------
LOAN NO. TERM TERM RATE (P&I) (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN
-------- -------- --------- -------- -------- ------- --------- -- --- ---------- --- -- ----
410 240 239 5.520% $28,939 NAP 1 35 81 4
411 240 239 5.520% $24,632 NAP 1 35 81 4
412 240 239 5.520% $24,460 NAP 1 35 81 4
413 240 239 5.520% $14,986 NAP 1 35 81 4
417 360 357 5.070% $63,580 NAP 3 35 83 2
426 360 359 5.290% $54,082 NAP 1 35 83 2
431 360 356 5.240% $49,974 NAP 4 35 83 2
445 300 298 5.990% $44,157 NAP 2 35 83 2
448 360 357 5.170% $35,572 NAP 3 35 83 2
452 360 360 5.430% $35,354 $28,789 10 35 81 4
453 360 358 5.700% $35,114 NAP 2 35 81 4
456 360 360 5.430% $32,114 $26,151 5 35 81 4
458 360 357 5.730% $33,191 NAP 3 35 81 4
460 360 357 5.170% $30,647 NAP 3 35 83 2
464 360 360 5.560% $15,606 $12,826 2 26 30 4
465 360 360 5.560% $14,401 $11,837 2 26 30 4
496 360 358 5.460% $20,915 NAP 2 35 80 5
500 360 357 5.530% $20,594 NAP 3 35 81 4
504 360 359 5.300% $19,158 NAP 1 35 81 4
505 360 359 5.300% $19,019 NAP 1 35 81 4
508 300 299 5.660% $ 3,243 NAP 1 35 81 4
509 300 299 5.660% $ 3,087 NAP 1 35 81 4
510 300 299 5.660% $ 3,087 NAP 1 35 81 4
511 300 299 5.660% $ 2,744 NAP 1 35 81 4
512 300 299 5.660% $ 2,744 NAP 1 35 81 4
513 300 299 5.660% $ 2,744 NAP 1 35 81 4
TRUSTEE PAR EXCESS
MORTGAGE ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. COST RATE RATE FEE FEE RATE
-------- -------------- ------- --------- ---------
410 3.175 0.125 0.05 1.00
411 3.175 0.125 0.05 1.00
412 3.175 0.125 0.05 1.00
413 3.175 0.125 0.05 1.00
417 8.175 0.125 0.05 1.00
426 8.175 0.125 0.05 1.00
431 3.175 0.125 0.05 1.00
445 3.175 0.125 0.05 1.00
448 8.175 0.125 0.05 1.00
452 3.175 0.125 0.05 1.00
453 3.175 0.125 0.05 1.00
456 3.175 0.125 0.05 1.00
458 3.175 0.125 0.05 1.00
460 8.175 0.125 0.05 1.00
464 3.175 0.125 0.05 1.00
465 3.175 0.125 0.05 1.00
496 3.175 0.125 0.05 1.00
500 3.175 0.125 0.05 1.00
504 5.175 0.125 0.05 3.00
505 5.175 0.125 0.05 3.00
508 10.175 0.125 0.05 8.00
509 10.175 0.125 0.05 8.00
510 10.175 0.125 0.05 8.00
511 10.175 0.125 0.05 8.00
512 10.175 0.125 0.05 8.00
513 10.175 0.125 0.05 8.00
</TABLE>
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING MONTHLY
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE PAYMENT
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE (P&I)
-------- -------- ------------------------- ---------- ---------- -------- --------- -------- --------- -------- -------
514 WFB Dollar General S. Texas $ 434,407 06/15/2005 120 119 300 299 5.660% $ 2,713
Portfolio (Pool 8) -
Dollar General Los
Fresnos
515 WFB Time Square East Ph 1 $3,097,209 06/24/2005 120 119 360 359 5.680% $17,953
516 WFB Xxxxxx Retail Center $3,090,932 04/26/2005 120 117 360 357 5.600% $17,796
519 WFB Xxxxxxx Michaels $2,997,033 06/08/2005 120 119 360 359 5.300% $16,659
522 WFB Tamarus Village $2,978,146 11/30/2004 120 113 360 353 5.620% $17,260
Xxxxxxxxxx
000 XXX Xxxxxxxx Exhibits $2,940,078 08/02/2004 120 109 264 253 6.000% $20,492
528 WFB Xxxxxxx Pier 1 Imports $2,597,428 06/08/2005 120 119 360 359 5.300% $14,438
531 WFB Xxxxxxx/Aloe Industrial $2,408,226 05/20/2005 120 118 360 358 5.645% $13,921
533 WFB Oakmead Industrial $2,247,949 06/08/2005 120 119 360 359 5.630% $12,959
Xxxxxxxx
000 XXX Xxxxxx Xxxxxxxxx $1,923,280 06/05/2005 120 119 360 359 5.710% $11,185
Industrial
541 WFB Sun Commercial Center $1,876,285 04/27/2005 120 118 360 358 5.650% $10,852
000 XXX Xxxxxx Xxxxx Shopping $1,756,198 05/24/2005 120 118 300 298 6.000% $11,346
Center
MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
514 NAP 1 35 81 4 10.175 0.125 0.05 8.00
515 NAP 1 35 83 2 3.175 0.125 0.05 1.00
516 NAP 3 35 81 4 3.175 0.125 0.05 1.00
519 NAP 1 35 81 4 5.175 0.125 0.05 3.00
522 NAP 7 35 81 4 5.175 0.125 0.05 3.00
523 NAP 11 35 81 4 3.175 0.125 0.05 1.00
528 NAP 1 35 81 4 5.175 0.125 0.05 3.00
531 NAP 2 35 81 4 3.175 0.125 0.05 1.00
533 NAP 1 35 81 4 3.175 0.125 0.05 1.00
539 NAP 1 35 81 4 3.175 0.125 0.05 1.00
541 NAP 2 35 81 4 10.175 0.125 0.05 3.00
545 NAP 2 35 81 4 7.175 0.125 0.05 5.00
</TABLE>
SCHEDULE IV
SUNTRUST LOAN SCHEDULE
MSCI 2005-HQ6
LOAN SCHEDULE
<TABLE>
MORTGAGE CUT-OFF ORIGINAL REMAINING ORIGINAL REMAINING MONTHLY
MORTGAGE LOAN DATE TERM TO TERM TO AMORT. AMORT. MORTGAGE PAYMENT
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE (P&I)
-------- -------- ------------------------- ----------- ---------- -------- --------- -------- --------- -------- --------
380 SunTrust Days Inn - Inn at Xxxxx $17,322,101 12/29/2004 120 113 300 293 6.090% $114,673
Xxxxxx
000 XxxXxxxx Xxxx Xxxxxx Xxxxxxxx $ 9,091,072 07/06/2005 120 119 360 359 5.550% $ 52,419
433 SunTrust Pen Office Building $ 8,500,000 07/07/2005 120 120 360 360 5.550% $ 48,963
000 XxxXxxxx Xxxxxxxxxx Xxxxxx Apts $ 8,450,000 06/06/2005 120 119 324 324 5.220% $ 49,075
000 XxxXxxxx Xxxx Xxxxx $ 3,001,409 02/24/2005 120 115 300 295 5.370% $ 18,483
538 SunTrust Fairfield Inn - $ 1,988,641 03/08/2005 120 116 300 296 6.020% $ 13,018
Xxxxxxxxxxxx
000 XxxXxxxx Xxxxxxxxx Xxxxx $ 1,779,752 08/26/2004 120 109 360 349 5.970% $ 10,858
Apartments
000 XxxXxxxx Xxxxx Xxxxx Xxxxxx $ 1,730,564 12/09/2004 120 113 300 293 5.490% $ 10,820
000 XxxXxxxx Xxxxxxxx Xxxxxx $ 1,715,775 02/24/2005 120 115 360 355 5.470% $ 9,848
MONTHLY PREPAYMENT CODE TRUSTEE PAR EXCESS
MORTGAGE PAYMENT ---------------------------------- ADMINISTRATIVE FEE SERVICING SERVICING
LOAN NO. (IO) SEASONING LO DEF DEF/YM1.00 YM1 YM OPEN COST RATE RATE FEE FEE RATE
-------- ------- --------- -- --- ---------- --- -- ---- -------------- ------- --------- ---------
380 NAP 7 31 85 4 10.175 0.125 0.05 3.00
428 NAP 1 59 57 4 10.175 0.125 0.05 3.00
433 NAP 0 59 57 4 10.175 0.125 0.05 3.00
434 $37,268 1 25 91 4 10.175 0.125 0.05 3.00
518 NAP 5 29 87 4 10.175 0.125 0.05 3.00
538 NAP 4 28 88 4 10.175 0.125 0.05 3.00
544 NAP 11 35 81 4 10.175 0.125 0.05 3.00
546 NAP 7 31 85 4 10.175 0.125 0.05 3.00
547 NAP 5 29 87 4 10.175 0.125 0.05 3.00
</TABLE>
SCHEDULE V
[RESERVED]
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
MSMC - None
PMCF - None
XXXXX - None
SUNTRUST - None
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
MSMC -
o Uhaul Portfolio - $3,113,626 (deferred maintenance), $2,886,384
(environmental)
o The Kenmawr Apartments - $120,958 (deferred maintenance)
o Park Techne Center - $124,780 (deferred maintenance)
o 00 Xxxxx Xxxx Xxxx - $159,035 (deferred maintenance)
o Point Plaza Shopping Center $560,956 (deferred maintenance)
o South Mountain Plaza $96,150 (deferred maintenance)
o Seven St. Lukes Place Apartments $75,000 (deferred maintenance),
$189,510 (environmental)
o Tropicana Gardens $1,300,000 (deferred maintenance)
PMCF - None
XXXXX - See attached
SUNTRUST - None
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
510902792 Tanasbourne Town
Center
---------------------------------------------------------------------------------------------------
510902791 Arrowhead Crossing 300000 Existing Contractual
Costs TI Impound.
Borrower shall deposit
with Lender $300,000
on the disbursement
date for tenant
improvements (whether
performed or paid for
by Borrower directly
or by the tenant and
paid for by the
Borrower in the form
of a tenant
improvement allowance)
and leasing commisions
for which Borrower has
any obligation
remaining on the
disbursement date
under the lease(s)
currently in effect
with DSW Shoe
Warehouse.
---------------------------------------------------------------------------------------------------
510902849 Boca Park Phase I
---------------------------------------------------------------------------------------------------
510902790 Xxxxx Promenade
---------------------------------------------------------------------------------------------------
510902793 Maple Grove
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00003
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00008
---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00022
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00024
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00025
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00031
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00034
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00048
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00055
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00056
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00057
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00068
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00073
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-2
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00080
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00087
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00127
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00129
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00131
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00136
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00142
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00145
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00168
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00173
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00190
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-3
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00193
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00196
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00197
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00199
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00217
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00236
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00239
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00254
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00283
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00286
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00300
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-4
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00301
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00309
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00342
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00347
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00349
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00350
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00365
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00395
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00401
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00404
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00423
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-5
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00424
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00428
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00443
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00448
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00450
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00455
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00457
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00468
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00470
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00481
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00496
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-6
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00518
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00556
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00557
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00564
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00565
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00568
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00574
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00579
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00590
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00595
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00599
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-7
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00619
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00655
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00670
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00675
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00679
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00681
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00686
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00688
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00694
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00696
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00700
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-8
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00707
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00708
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00709
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00713
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00725
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00727
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00732
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00751
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00762
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00765
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00767
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-9
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00771
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00775
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00778
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00794
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00795
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00796
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00803
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00808
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00818
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00819
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00824
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-10
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00826
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00827
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00841
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00871
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00899
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00908
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00911
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00915
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00916
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00919
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00931
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-11
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00939
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-00996
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01009
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01020
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01023
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01035
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01043
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01047
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01061
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01136
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01167
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-12
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01169
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01174
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01182
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01187
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01209
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01211
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01231
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01246
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01267
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01268
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01271
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-13
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01275
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01278
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01281
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01289
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01295
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01296
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01303
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01305
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01319
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01329
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01331
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-14
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01342
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01349
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01352
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01362
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01363
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01384
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01386
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01391
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01394
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01401
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01423
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-15
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01427
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01435
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01442
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01463
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01501
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01536
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01562
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01564
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01570
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01615
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01619
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-16
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01671
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-01675
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-03060
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-03280
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04131
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04141
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04142
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04313
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04478
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04556
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04577
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-17
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04599
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04608
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04609
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04673
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04757
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-04988
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-05297
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-05338
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-05342
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-05566
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-05889
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-18
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-07384
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-08560
---------------------------------------------------------------------------------------------------
930902639 FRIS Chkn, LLC
A-Note - CFC-08769
---------------------------------------------------------------------------------------------------
310902781 Naperville Plaza
Shopping Center
---------------------------------------------------------------------------------------------------
310902736A Zilber Office
Portfolio -
Criticare
---------------------------------------------------------------------------------------------------
310902736B Zilber Office
Portfolio - Park
Plaza
---------------------------------------------------------------------------------------------------
310902736C Zilber Office
Portfolio - Tower
Executive Office
Building
---------------------------------------------------------------------------------------------------
310902736D Zilber Office
Portfolio -
Mayfair Corporate
Center
---------------------------------------------------------------------------------------------------
610902557 TownCentre Commons
---------------------------------------------------------------------------------------------------
610902842 Basin Street Town
Center
---------------------------------------------------------------------------------------------------
310902363 San Leandro
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-19
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
Center
---------------------------------------------------------------------------------------------------
310902606 Best Western Hotel
JTB/Southpoint
---------------------------------------------------------------------------------------------------
610902558 TownCentre Office
and Executive
Suites
---------------------------------------------------------------------------------------------------
310901678 Tinley Crossings
Corporate Center
---------------------------------------------------------------------------------------------------
310902630 Harbor Business
Center
---------------------------------------------------------------------------------------------------
310902285 ACCO Airport
Center
---------------------------------------------------------------------------------------------------
310902408 Xxxxxxx'x - Xxxx
Drive
---------------------------------------------------------------------------------------------------
610902560 TownCentre Plaza
---------------------------------------------------------------------------------------------------
310902678A Rocklin Properties
- Rocklin
Industrial
---------------------------------------------------------------------------------------------------
310902678B Rocklin Properties
- Rocklin Retail
---------------------------------------------------------------------------------------------------
410902652 0000 Xxxxxxx
Xxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------
410902600 The Shoppes at
Athenry
---------------------------------------------------------------------------------------------------
410902802 Xxxxxxx X.X.
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-20
<TABLE>
---------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
---------------------------------------------------------------------------------------------------
Maxx
---------------------------------------------------------------------------------------------------
410902805 Xxxxxxx Bed Bath
and Beyond
---------------------------------------------------------------------------------------------------
410902651A Dollar General S.
Texas Portfolio
(Pool 8) -
Coldspring
---------------------------------------------------------------------------------------------------
410902651B Dollar General S.
Texas Portfolio
(Pool 8) - Texas
City Magnolia
---------------------------------------------------------------------------------------------------
410902651C Dollar General S.
Texas Portfolio
(Pool 8) - Dollar
General Texas City
---------------------------------------------------------------------------------------------------
410902651D Dollar General S.
Texas Portfolio
(Pool 8) -
Beaumont
---------------------------------------------------------------------------------------------------
410902651E Dollar General S.
Texas Portfolio
(Pool 8) -
Brownsville
---------------------------------------------------------------------------------------------------
410902651F Dollar General S.
Texas Portfolio
(Pool 8) - Mission
---------------------------------------------------------------------------------------------------
</TABLE>
S-2-21
<TABLE>
----------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
----------------------------------------------------------------------------------------------------
410902651G Dollar General S.
Texas Portfolio
(Pool 8) - Dollar
General Los Fresnos
----------------------------------------------------------------------------------------------------
410902797 Time Square East
Ph 1
----------------------------------------------------------------------------------------------------
410902637 Xxxxxx Retail
Center
----------------------------------------------------------------------------------------------------
410902804 Xxxxxxx Michaels
----------------------------------------------------------------------------------------------------
410902003 Tamarus Village $156,250 The property engineer
Apartments determined that
replacement reserve
costs over the term of
the financing would
likely include asphalt
paving and sealing,
exterior painting and
siding repairs, roof
replacement, new
interior appliances,
carpet, vinyl, water
heaters, pool
equipment, and HVAC
component replacement.
An upfront impound of
$156,250 was taken at
loan funding for the
repair of the building
siding ($25,740), the
exterior building
painting ($48,400),
and the
----------------------------------------------------------------------------------------------------
</TABLE>
S-2-22
<TABLE>
----------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
----------------------------------------------------------------------------------------------------
parking lot
resurfacing and car
stop block replacement
($36,660). The parking
lot re-surfacing has
been completed and the
painting and siding
repair are on schedule
for June 30, 2005
completion. This work
is required to be
completed within 6
months of loan
funding. Excluding
these items in the
on-going maintenance
reserve brings the
calculated annual
reserve down to $285
per unit. Although
on-going monthly
impounds were not
required, a $285 per
unit monthly
replacement reserve
was assumed in
underwritten cash
flow.
----------------------------------------------------------------------------------------------------
410901687 Xxxxxxxx Exhibits
----------------------------------------------------------------------------------------------------
410902803 Xxxxxxx Pier 1
Imports
----------------------------------------------------------------------------------------------------
410902751 Xxxxxxx/Aloe $172,456 The capital
Industrial improvement items
listed in Table C.4 of
the Engineering report
required addressing
over the finance term.
----------------------------------------------------------------------------------------------------
</TABLE>
S-2-23
<TABLE>
----------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
----------------------------------------------------------------------------------------------------
Quantities and costs
of the items listed
are based on LAC's
observations as well
as information
provided by the
owner/manager.
Replacement reserve
costs over the term of
the financing include
addressing restriping
the parking area,
repairing the concrete
pavement, power
washing, resealing,
and repainting the
exterior of the
building, and
replacing HVAC
components.
Additionally, LAC
recommended that the
roof covering be
replaced in Year 2 at
an estimated cost of
$137,965. WFB required
the Borrower to
impound $172,456 (125%
$137,965) for the
anticipated roof
replacement.
----------------------------------------------------------------------------------------------------
410902625 Oakmead Industrial
Building
----------------------------------------------------------------------------------------------------
410902631 Rancho Xxxxxxxxx
Industrial
----------------------------------------------------------------------------------------------------
</TABLE>
S-2-24
<TABLE>
----------------------------------------------------------------------------------------------------
"SCHEDULE VII - UPFRONT RESERVES,
IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING
WORK
- COMPLETION OF ADDITIONAL
CONSTRUCTION
TAB - ENVIRONMENTAL REMEDIATON OT SCHEDULE VII - UPFRONT
LOAN NUMBER NO. PROPERTY NAME SIMILAR PROJECTS" RESERVES COMMENTS
----------------------------------------------------------------------------------------------------
620902681 Sun Commercial
Center
----------------------------------------------------------------------------------------------------
410902700 Rapids Plaza
Shopping Center
----------------------------------------------------------------------------------------------------
</TABLE>
S-2-25
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(A)
MSMC - See attached
PMCF - None
XXXXX - None
SUNTRUST - None
MSCI 2005-HQ6
SECTION 2.3 (A) LIST (CROSSED LOANS)
<TABLE>
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- -------------------- ---------- -------------------------------------------------- ----------------------
3 MSMC U-Haul Xxxx Stadium $9,329,239 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
4 MSMC Spring U-Haul Center $3,039,165 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
5 MSMC U-Haul Center Pelham $2,940,860 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
6 MSMC U-Haul Ct Summer Av $1,800,419 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
7 MSMC U-Haul St Petersburg $1,564,099 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
8 MSMC U-Haul Ctr Sherwood $1,521,986 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
0 XXXX X-Xxxx Xxx Xxxxxxx $1,461,963 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
10 MSMC U-Haul Center Of $1,459,304 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Manchester LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
11 MSMC U-Haul Somerville $1,423,153 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
12 MSMC U-Haul Rental East $1,274,939 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxx Xxx $1,171,757 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
14 MSMC U-Haul Ct Bardstown $1,054,012 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
15 MSMC U-Haul Cumberland $1,050,768 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
16 MSMC U-Haul Center Page $1,048,760 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Avenue LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
17 MSMC U-Haul Livernois&&7M $ 963,811 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
18 MSMC U-Haul Center Ben $ 711,874 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
White LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
19 MSMC U-Haul Center Of $ 704,020 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
High Point LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xx Xxxxx Xxx $ 666,974 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
21 MSMC U-Haul Of Reading $ 664,144 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
22 MSMC U-Haul Center Of $ 636,603 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Xxxxx LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
23 MSMC U-Haul Ct E Xxxxxxx $ 624,698 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
24 MSMC U-Haul Ct Of Aurora $ 551,405 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
25 MSMC U-Haul Schenectady $ 546,676 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
26 MSMC U-Haul Ct Xxxxxxxxx $ 541,747 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
27 MSMC U-Haul Metro Center $ 496,486 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
28 MSMC U-Haul Ct Eastgate $ 480,384 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xx Xxxxx $ 479,765 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
30 MSMC U-Haul Xxxxxxxxx Xx $4,646,550 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
</TABLE>
<TABLE>
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- -------------------- ---------- -------------------------------------------------- ----------------------
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
31 MSMC U-Haul Center Valley $3,855,175 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Blvd LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
32 MSMC U-Haul Westside Erie $2,702,505 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
33 MSMC U-Haul Northeast Ex $1,839,139 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
34 MSMC U-Haul Xxxxxxxx Road $1,541,795 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
35 MSMC U-Haul University $1,304,221 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Avenue LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
36 MSMC U-Haul Boulder Hwy $1,287,414 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
37 MSMC U-Haul Ctr Xxxxxxxx $1,181,892 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
38 MSMC U-Haul Center $1,059,119 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Hempstead LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxx Av $1,035,012 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
40 MSMC U-Haul N Charleston $1,012,638 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
41 MSMC U-Haul Apple Avenue $ 999,994 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
42 MSMC U-Haul E Speedway $ 979,657 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
43 MSMC U-Haul Ctr Sooner $ 919,510 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxx $ 891,285 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
45 MSMC U-Haul Ct Southside $ 861,599 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
46 MSMC U-Haul Binghamton $ 855,757 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxxx $ 723,077 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
48 MSMC U-Haul Ct Garland $ 715,379 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
49 MSMC U-Haul Southwest $ 696,091 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
50 MSMC U-Haul Ct Lorain Rd $ 687,055 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxxx $ 675,374 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
52 MSMC U-Haul N Glenstone $ 659,421 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
53 MSMC U-Haul W Xxxxxxx $ 554,262 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
54 MSMC U-Haul Baseline Rd $ 543,547 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
55 MSMC U-Haul Ct Of Moscow $ 502,078 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
56 MSMC U-Haul Center Of $ 202,913 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Greensboro LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxx $3,876,265 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Philadlphia LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
58 MSMC U-Haul Center $3,406,359 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Waverly Road LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
59 MSMC U-Haul 26Th And $2,840,504 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Indian School LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
</TABLE>
S-2-2
<TABLE>
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- -------------------- ---------- -------------------------------------------------- ----------------------
60 MSMC U-Haul Center Quail $2,549,680 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Springs LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
61 MSMC U-Haul Evanston $1,852,871 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
62 MSMC U-Haul Center La $1,739,286 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Brea LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
63 MSMC U-Haul 34Th && Q $1,302,131 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
64 MSMC U-Haul Roxborough $1,118,743 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
65 MSMC U-Haul Xxxxxxx Sq $1,090,343 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxx 0 $1,075,244 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
67 MSMC U-Haul Clarksville $1,065,982 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
68 MSMC U-Haul Center Ft $1,047,438 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Xxxxxx LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
69 MSMC U-Haul Huntington $1,005,820 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
70 MSMC U-Haul I-80&&Manawa $ 990,197 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxx $ 819,819 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
72 MSMC U-Haul Center Xxxxxx $ 783,628 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
73 MSMC U-Haul Xxxxxxxx Air $ 763,423 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
74 MSMC U-Haul Ct Alexis Rd $ 735,918 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
75 MSMC U-Haul Chula Vista $ 700,432 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxxxx Xxxxx $ 636,027 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
77 MSMC U-Haul Ct State St $ 627,710 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
78 MSMC U-Haul Ctr Of Pearl $ 560,986 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
79 MSMC U-Haul Xxxx Xxxxxxx $ 527,904 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
80 MSMC U-Haul Jefferson $ 479,395 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Xxxxx Highway LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
81 MSMC U-Haul National Rd $ 372,978 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
82 MSMC U-Haul New Britain $ 369,521 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
83 MSMC U-Haul Ct Groes Ten $ 244,368 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
84 MSMC U-Haul Ctr Of Xxxxxx $3,609,697 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Valley LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
85 MSMC U-Haul Ctr Hamden $2,986,139 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
86 MSMC U-Haul Of Gardena $2,517,890 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxxx $1,708,605 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
88 MSMC U-Haul Norristown $1,684,823 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
89 MSMC U-Haul Leominster $1,392,753 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
</TABLE>
S-2-3
<TABLE>
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- -------------------- ---------- -------------------------------------------------- ----------------------
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
90 MSMC U-Haul Center $1,389,702 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Midtown LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
91 MSMC U-Haul Chinden Blvd $1,301,683 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
92 MSMC U-Haul 24Th & $1,237,174 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Xxxxxxx LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
93 MSMC U-Haul Ctr Of Janaf $1,187,113 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
00 XXXX X-Xxxx Xxx Xxxxxxx $1,062,249 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
95 MSMC U-Haul Appleton $1,027,077 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
96 MSMC U-Haul East Side $1,026,781 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
97 MSMC U-Haul Canyon&& $1,005,064 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Xxxxxx LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
98 MSMC U-Haul Hillwood Pla $ 913,491 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
99 MSMC U-Haul Burlingame $ 908,546 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
100 MSMC U-Haul Center $ 888,365 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 00, Xxxxxx Xxxx Xxxxxx
Xxxxxxx Xxxx LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx Red Bluff $ 884,421 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
102 MSMC U-Haul Center $ 778,261 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Riverside LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
103 MSMC U-Haul Broadway Ave $ 699,576 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
104 MSMC U-Haul Center Duluth $ 682,682 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
105 MSMC U-Haul Center Of $ 550,050 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
West Babylon LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
106 MSMC U-Haul Center Main $ 507,663 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Street LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
107 MSMC U-Haul Southside $ 424,206 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
108 MSMC U-Haul Xxxxxxxxxx H $ 368,890 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxxxxx Xxxx $ 335,353 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Road LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
110 MSMC U-Haul Spartanburg $ 113,029 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
111 MSMC Woodlake U-Haul $2,518,259 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Center LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
112 MSMC U-Haul Center $2,480,039 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Kingwood LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
113 MSMC U-Haul Center Of $2,347,624 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Ashley Road LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
114 MSMC U-Haul White Plains $2,078,806 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx Xxxxxxxxx $1,811,702 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
116 MSMC U-Haul Portsmouth $1,658,461 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx Of Xxxxxx $1,617,438 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
118 MSMC U-Haul Wyoming $1,584,698 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Valley LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
</TABLE>
S-2-4
<TABLE>
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- -------------------- ---------- -------------------------------------------------- ----------------------
119 MSMC U-Haul Xxxx Blvd $1,528,517 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
120 MSMC U-Haul Center $1,400,818 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Midtown LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
121 MSMC U-Haul Midway Rental $1,354,269 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
122 MSMC U-Haul New Utrecht $1,253,965 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxx 0Xx Ave $1,067,440 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
124 MSMC U-Haul Idaho Falls $1,066,026 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxx Xxxxxx $1,030,587 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
126 MSMC U-Haul Xxxxxxxxxx $ 842,053 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
127 MSMC U-Haul 7 Mi Van Dyk $ 781,091 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
128 MSMC U-Haul Bowling Green $ 670,762 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
129 MSMC U-Haul Center $ 666,647 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Southeast LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
130 MSMC U-Haul Fall River $ 649,842 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
131 MSMC U-Haul Ct Mile High $ 627,587 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
132 MSMC U-Haul Center $ 520,530 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Calumet LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
133 MSMC U-Haul Center $ 428,968 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Bremerton LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx N Xxxxxxx $ 366,179 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
135 MSMC U-Haul Cape Xxxxxx $ 344,634 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
136 MSMC U-Haul Ctr Ft Xxxxx $ 319,603 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
137 MSMC U-Haul Grand $3,661,870 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Concourse LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
138 MSMC U-Haul Center $2,222,043 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Lafayette LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
139 MSMC U-Haul Capitol Ave $1,908,153 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
140 MSMC U-Haul South Centra $1,757,754 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
141 MSMC U-Haul Center $1,565,474 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Eastside LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
142 MSMC U-Haul Castleton $1,502,539 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
143 MSMC U-Haul Overbrook $1,264,929 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
144 MSMC U-Haul Ct Broad St $1,253,931 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxx Xxxxxxx $1,150,070 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
146 MSMC U-Haul Center Seven $1,142,921 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Hill LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
147 MSMC U-Haul South Shore $1,074,372 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
148 MSMC U-Haul Ctr Colonie $1,027,216 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
</TABLE>
S-2-5
<TABLE>
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- -------------------- ---------- -------------------------------------------------- ----------------------
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxx Xxxxxxx $1,007,774 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx X Xxxxxxxx $ 977,693 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
151 MSMC U-Haul Western Ave $ 852,688 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
152 MSMC U-Haul Plainfield $ 843,466 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx Joy Road $ 827,501 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
154 MSMC U-Haul Center North $ 707,792 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
County LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx Jonesboro $ 697,376 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxxxxxx Xxxx $ 618,478 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
157 MSMC U-Haul Center Mesa $ 559,046 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Road LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
158 MSMC U-Haul Erie && High $ 515,849 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xxxx Xxxx $ 395,439 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX X-Xxxx Xx Lima Mall $ 351,569 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
161 MSMC U-Haul Center Third $ 328,450 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
Street LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
162 MSMC U-Haul Of Lebanon $ 303,874 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
163 MSMC U-Haul Mobile Hwy $ 276,567 AREC 8, LLC, AREC 9, LLC, AREC 10, LLC, AREC 11, Amerco Real Estate
LLC, AREC 12, LLC, AREC 13, LLC, UHIL 8, LLC, UHIL Company, Republic West
9, LLC, UHIL 10, LLC, UHIL 11, LLC, UHIL 12, LLC
and UHIL 13, LLC
000 XXXX XX Retail Portfolio $5,350,058 Bring Management, L.L.C.; Item Associates, L.L.C.; Xxxxxx Xxxxxxxxxx
- Walgreens Xxxxx Xxxxx HJR Corp.; Shakespeare HJR Corp.
000 XXXX XX Retail Portfolio $5,099,087 Bring Management, L.L.C.; Item Associates, L.L.C.; Xxxxxx Xxxxxxxxxx
- Walgreens Xxxxx HJR Corp.; Shakespeare HJR Corp.
Haverhill
000 XXXX XX Retail Portfolio $3,465,786 Xxxxxxx Management, L.L.C. Xxxxxx Xxxxxxxxxx
- Xxxxxx Niskayuna
438 MSMC Suburban Extended $3,885,679 Embassy Investments VIII, LLC Mohan Boola; Tarang
Stay Portfolio - Xxxxx
Daytona
439 MSMC Suburban Extended $3,586,780 Embassy Investments IX, LLC Xxxxx Xxxxxx; Tarang
Stay Portfolio - Xxxxx
Melbourne
000 XXXX XX Self Storage $1,891,851 Attic Self Storage - Xxxxxx, XX Evergreen Realty REIT,
Portfolio - Xxxxxx Inc.
000 XXXX XX Self Storage $1,742,494 Attic Self Storage - Laredo, LP Evergreen Realty REIT,
Portfolio - Laredo Inc.
</TABLE>
S-2-6
SCHEDULE IX
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
09/13/2005 5.57250%
10/13/2005 5.39265%
11/13/2005 5.57253%
12/13/2005 5.39268%
01/13/2006 5.39269%
02/13/2006 5.39270%
03/13/2006 5.39298%
04/13/2006 5.57261%
05/13/2006 5.39275%
06/13/2006 5.57264%
07/13/2006 5.39277%
08/13/2006 5.57267%
09/13/2006 5.57268%
10/13/2006 5.39280%
11/13/2006 5.57270%
12/13/2006 5.39282%
01/13/2007 5.39283%
02/13/2007 5.39284%
03/13/2007 5.39316%
04/13/2007 5.57276%
05/13/2007 5.39287%
06/13/2007 5.57278%
07/13/2007 5.39289%
08/13/2007 5.57280%
09/13/2007 5.57281%
10/13/2007 5.39291%
11/13/2007 5.57283%
12/13/2007 5.39292%
01/13/2008 5.57285%
02/13/2008 5.39294%
03/13/2008 5.39307%
04/13/2008 5.57288%
05/13/2008 5.39296%
06/13/2008 5.57290%
07/13/2008 5.39298%
08/13/2008 5.57292%
09/13/2008 5.57293%
DISTRIBUTION DATE RATE
----------------- -------
10/13/2008 5.39301%
11/13/2008 5.57295%
12/13/2008 5.39302%
01/13/2009 5.39303%
02/13/2009 5.39304%
03/13/2009 5.39346%
04/13/2009 5.57301%
05/13/2009 5.39307%
06/13/2009 5.57304%
07/13/2009 5.39309%
08/13/2009 5.57306%
09/13/2009 5.57307%
10/13/2009 5.39312%
11/13/2009 5.57310%
12/13/2009 5.39315%
01/13/2010 5.39316%
02/13/2010 5.39317%
03/13/2010 5.39362%
04/13/2010 5.57317%
05/13/2010 5.39228%
06/13/2010 5.57478%
07/13/2010 5.44479%
08/13/2010 5.63068%
09/13/2010 5.64834%
10/13/2010 5.46615%
11/13/2010 5.64847%
12/13/2010 5.46627%
01/13/2011 5.46634%
02/13/2011 5.46640%
03/13/2011 5.46700%
04/13/2011 5.64881%
05/13/2011 5.46659%
06/13/2011 5.64894%
07/13/2011 5.46672%
08/13/2011 5.64908%
09/13/2011 5.64914%
10/13/2011 5.46690%
11/13/2011 5.64928%
12/13/2011 5.46703%
01/13/2012 5.64941%
02/13/2012 5.46716%
03/13/2012 5.46741%
04/13/2012 5.64963%
05/13/2012 5.46736%
S-2-2
DISTRIBUTION DATE RATE
----------------- -------
06/13/2012 5.65965%
07/13/2012 5.47707%
08/13/2012 5.65979%
09/13/2012 5.65985%
10/13/2012 5.47726%
11/13/2012 5.65999%
12/13/2012 5.47738%
01/13/2013 5.47745%
02/13/2013 5.47751%
03/13/2013 5.47820%
04/13/2013 5.66035%
05/13/2013 5.47772%
06/13/2013 5.66049%
07/13/2013 5.47785%
08/13/2013 5.66019%
S-2-3
SCHEDULE X
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
ENVIRONMENTAL INSURANCE LIST
<TABLE>
----------------------------------------------------------------------------------------------------------------------------
CMSA MORTGAGE
MORTGAGE CMSA PROPERTY LOAN LOAN
LOAN NO. LOAN NO. NO. SELLER(1) GROUP PROPERTY NAME(2)
----------------------------------------------------------------------------------------------------------------------------
182 24 24-001 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
183 24-002 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
184 24-003 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
185 24-004 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
186 24-005 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
187 24-006 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
188 24-007 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
189 24-008 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
190 24-009 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
191 24-010 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
192 24-011 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
193 24-012 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
194 24-013 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
195 24-014 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
196 24-015 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
197 24-016 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
198 24-017 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
199 24-018 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
200 24-019 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
201 24-020 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
202 24-021 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
203 24-022 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
204 24-023 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
205 24-024 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
206 24-025 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
207 24-026 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
208 24-027 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
209 24-028 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
210 24-029 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
211 24-030 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
212 24-031 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
213 24-032 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
214 24-033 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
215 24-034 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
216 24-035 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
217 24-036 WFB 1 FRIS Chkn, LLC A-Note - CFC-00619 (VIII)
</TABLE>
<TABLE>
----------------------------------------------------------------------------------------------------------------------------
CMSA MORTGAGE
MORTGAGE CMSA PROPERTY LOAN LOAN
LOAN NO. LOAN NO. NO. SELLER(1) GROUP PROPERTY NAME(2)
----------------------------------------------------------------------------------------------------------------------------
218 24-037 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
219 24-038 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
220 24-039 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
221 24-040 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
222 24-041 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
223 24-042 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
224 24-043 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
225 24-044 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
226 24-045 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
227 24-046 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
228 24-047 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
229 24-048 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
230 24-049 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
231 24-050 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
232 24-051 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
233 24-052 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
234 24-053 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
235 24-054 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
236 24-055 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
237 24-056 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
238 24-057 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
239 24-058 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
240 24-059 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
241 24-060 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
242 24-061 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
243 24-062 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
244 24-063 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
245 24-064 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
246 24-065 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
247 24-066 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
248 24-067 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
249 24-068 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
250 24-069 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
251 24-070 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
252 24-071 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
253 24-072 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
254 24-073 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
255 24-074 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
256 24-075 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
257 24-076 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
258 24-077 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
259 24-078 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
260 24-079 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
261 24-080 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
262 24-081 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
263 24-082 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
264 24-083 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
265 24-084 WFB 1 FRIS Chkn, LLC A-Note - CFC-01023 (VIII)
</TABLE>
S-2-2
<TABLE>
----------------------------------------------------------------------------------------------------------------------------
CMSA MORTGAGE
MORTGAGE CMSA PROPERTY LOAN LOAN
LOAN NO. LOAN NO. NO. SELLER(1) GROUP PROPERTY NAME(2)
----------------------------------------------------------------------------------------------------------------------------
266 24-085 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
267 24-086 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
268 24-087 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
269 24-088 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
270 24-089 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
271 24-090 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
272 24-091 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
273 24-092 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
274 24-093 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
275 24-094 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
276 24-095 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
277 24-096 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
278 24-097 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
279 24-098 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
280 24-099 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
281 24-0100 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
282 24-0101 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
283 24-0102 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
284 24-0103 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
285 24-0104 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
286 24-0105 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
287 24-0106 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
288 24-0107 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
289 24-0108 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
290 24-0109 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
291 24-0110 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
292 24-0111 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
293 24-0112 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
294 24-0113 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
295 24-0114 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
296 24-0115 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
297 24-0116 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
298 24-0117 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
299 24-0118 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
300 24-0119 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
301 24-0120 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
302 24-0121 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
303 24-0122 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
304 24-0123 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
305 24-0124 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
306 24-0125 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
307 24-0126 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
308 24-0127 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
309 24-0128 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
310 24-0129 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
311 24-0130 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
312 24-0131 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
313 24-0132 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
</TABLE>
S-2-3
<TABLE>
----------------------------------------------------------------------------------------------------------------------------
CMSA MORTGAGE
MORTGAGE CMSA PROPERTY LOAN LOAN
LOAN NO. LOAN NO. NO. SELLER(1) GROUP PROPERTY NAME(2)
----------------------------------------------------------------------------------------------------------------------------
314 24-0133 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
315 24-0134 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
316 24-0135 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
317 24-0136 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
318 24-0137 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
319 24-0138 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
320 24-0139 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
321 24-0140 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
322 24-0141 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
323 24-0142 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
324 24-0143 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
325 24-0144 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
326 24-0145 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
327 24-0146 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
328 24-0147 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
329 24-0148 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
330 24-0149 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
331 24-0150 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
332 24-0151 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
333 24-0152 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
334 24-0153 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
335 24-0154 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
336 24-0155 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
337 24-0156 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
338 24-0157 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
339 24-0158 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
340 24-0159 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
341 24-0160 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
342 24-0161 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
343 24-0162 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
344 24-0163 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
345 24-0164 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
346 24-0165 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
347 24-0166 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
348 24-0167 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
349 24-0168 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
350 24-0169 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
351 24-0170 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
352 24-0171 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
353 24-0172 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
354 24-0173 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
355 24-0174 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
356 24-0175 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
357 24-0176 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
358 24-0177 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
359 24-0178 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
360 24-0179 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
361 24-0180 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
</TABLE>
S-2-4
<TABLE>
----------------------------------------------------------------------------------------------------------------------------
CMSA MORTGAGE
MORTGAGE CMSA PROPERTY LOAN LOAN
LOAN NO. LOAN NO. NO. SELLER(1) GROUP PROPERTY NAME(2)
----------------------------------------------------------------------------------------------------------------------------
362 24-0181 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
363 24-0182 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
364 24-0183 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
365 24-0184 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
366 24-0185 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
367 24-0186 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
368 24-0187 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
369 24-0188 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
370 24-0189 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
371 24-0190 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
372 24-0191 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
373 24-0192 WFB 0 XXXX Xxxx, XXX X-Xxxx - XXX-00000 (VIII)
500 134 134-001 WFB 1 The Shoppes at Athenry
504 138 138-001 WFB 1 Xxxxxxx X.X. Maxx
505 139 139-001 WFB 1 Xxxxxxx Bed Bath and Beyond
508 142 142-001 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Coldspring (XVI)
509 142-002 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Texas City Magnolia (XVI)
510 142-003 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Dollar General Texas City
(XVI)
511 142-004 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Beaumont (XVI)
512 142-005 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Brownsville (XVI)
513 142-006 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Mission (XVI)
514 142-007 WFB 1 Dollar General S. Texas Portfolio (Pool 8) - Dollar General Los Fresnos
(XVI)
515 143 143-001 WFB 1 Time Square East Ph 1
519 147 147-001 WFB 1 Xxxxxxx Michaels
522 150 150-001 WFB 2 Xxxxxxx Xxxxxxx Xxxxxxxxxx
000 000 000-000 XXX 0 Xxxxxxxx Exhibits
528 156 156-001 WFB 1 Xxxxxxx Pier 1 Imports
533 161 161-001 WFB 0 Xxxxxxx Xxxxxxxxxx Xxxxxxxx
545 173 173-001 WFB 1 Rapids Plaza Shopping Center
</TABLE>
S-2-5
SCHEDULE XI
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER THE END
OF A COLLECTION PERIOD
<TABLE>
DEBT SERVICE
PAYMENT GRACE
LOAN POOL MORTGAGE PERIOD TO IMPOSE
NO. LOAN NO. LOAN SELLER PROPERTY NAME DUE DATE LATE CHARGE
----------------------------------------------------------------------------------------------------------
2 2 MSMC 0000 Xxxxxxxx 8 0
165 10 MSMC Coronado Center 6 5
166 11 MSMC Melrose Minneapolis 8 0
167 11 MSMC Melrose Jacksonville 8 0
168 11 MSMC Melrose College Station 8 0
169 11 MSMC Melrose Gainesville 8 0
380 31 SunTrust Days Inn - Inn at Xxxxx Square 1 7
392 40 MSMC Lenoxplace at Xxxxxx Station Apartments 1 15
397 43 MSMC Mission Bay Apartments 8 0
398 44 MSMC Fairway Office Center 8 0
403 47 MSMC Hunters Run Apartments 8 0
416 57 MSMC Xxxxxxxxxx Farms Apartments 1 15
428 69 SunTrust Xxxx Office Building 1 7
433 74 SunTrust Pen Office Building 1 7
437 78 MSMC Walgreens - Marina Del Rey 8 0
459 99 MSMC Old Bakery Place Shopping Center 1 7
484 118 MSMC Crystal View Plaza 8 0
488 122 MSMC The Xxxxxx Apartments 1 15
518 146 SunTrust Ford Plaza 1 7
527 155 MSMC 0000 Xxxxx Xxxxxx 8 0
538 166 SunTrust Fairfield Inn - Jacksonville 1 7
544 172 SunTrust Ponderosa Place Apartments 1 7
546 174 SunTrust Glens Falls Office 1 7
547 175 SunTrust Abercorn Street 1 7
</TABLE>
S-2-6
SCHEDULE XII
LOANS THAT ACCRUE ON AN ACTUAL/360 BASIS, BUT WHOSE SERVICING
FEES ACCRUE ON A 30/360 BASIS
NONE
SCHEDULE XIII
CLASS A-AB PLANNED PRINCIPAL BALANCE
08/13/2005 $111,100,000.00
09/13/2005 $111,100,000.00
10/13/2005 $111,100,000.00
11/13/2005 $111,100,000.00
12/13/2005 $111,100,000.00
01/13/2006 $111,100,000.00
02/13/2006 $111,100,000.00
03/13/2006 $111,100,000.00
04/13/2006 $111,100,000.00
05/13/2006 $111,100,000.00
06/13/2006 $111,100,000.00
07/13/2006 $111,100,000.00
08/13/2006 $111,100,000.00
09/13/2006 $111,100,000.00
10/13/2006 $111,100,000.00
11/13/2006 $111,100,000.00
12/13/2006 $111,100,000.00
01/13/2007 $111,100,000.00
02/13/2007 $111,100,000.00
03/13/2007 $111,100,000.00
04/13/2007 $111,100,000.00
05/13/2007 $111,100,000.00
06/13/2007 $111,100,000.00
07/13/2007 $111,100,000.00
08/13/2007 $111,100,000.00
09/13/2007 $111,100,000.00
10/13/2007 $111,100,000.00
11/13/2007 $111,100,000.00
12/13/2007 $111,100,000.00
01/13/2008 $111,100,000.00
02/13/2008 $111,100,000.00
03/13/2008 $111,100,000.00
04/13/2008 $111,100,000.00
05/13/2008 $111,100,000.00
06/13/2008 $111,100,000.00
07/13/2008 $111,100,000.00
08/13/2008 $111,100,000.00
09/13/2008 $111,100,000.00
10/13/2008 $111,100,000.00
11/13/2008 $111,100,000.00
12/13/2008 $111,100,000.00
A-1
01/13/2009 $111,100,000.00
02/13/2009 $111,100,000.00
03/13/2009 $111,100,000.00
04/13/2009 $111,100,000.00
05/13/2009 $111,100,000.00
06/13/2009 $111,100,000.00
07/13/2009 $111,100,000.00
08/13/2009 $111,100,000.00
09/13/2009 $111,100,000.00
10/13/2009 $111,100,000.00
11/13/2009 $111,100,000.00
12/13/2009 $111,100,000.00
01/13/2010 $111,100,000.00
02/13/2010 $111,100,000.00
03/13/2010 $111,100,000.00
04/13/2010 $111,100,000.00
05/13/2010 $111,100,000.00
06/13/2010 $111,100,000.00
07/13/2010 $111,100,000.00
08/13/2010 $110,879,662.78
09/13/2010 $108,979,000.00
10/13/2010 $106,895,000.00
11/13/2010 $104,977,000.00
12/13/2010 $102,874,000.00
01/13/2011 $100,937,000.00
02/13/2011 $ 98,990,000.00
03/13/2011 $ 96,512,000.00
04/13/2011 $ 94,545,000.00
05/13/2011 $ 92,406,000.00
06/13/2011 $ 90,431,000.00
07/13/2011 $ 88,273,000.00
08/13/2011 $ 86,278,000.00
09/13/2011 $ 84,274,000.00
10/13/2011 $ 82,088,000.00
11/13/2011 $ 80,064,000.00
12/13/2011 $ 77,859,000.00
01/13/2012 $ 75,815,000.00
02/13/2012 $ 73,761,000.00
03/13/2012 $ 71,357,000.00
04/13/2012 $ 69,282,000.00
05/13/2012 $ 68,214,000.00
06/13/2012 $ 66,202,000.00
07/13/2012 $ 64,019,000.00
08/13/2012 $ 61,988,000.00
09/13/2012 $ 59,947,000.00
10/13/2012 $ 57,736,000.00
A-2
11/13/2012 $55,675,000.00
12/13/2012 $53,444,000.00
01/13/2013 $51,362,000.00
02/13/2013 $49,271,000.00
03/13/2013 $46,692,000.00
04/13/2013 $44,579,000.00
05/13/2013 $42,297,000.00
06/13/2013 $40,163,000.00
07/13/2013 $37,860,000.00
08/13/2013 $35,705,000.00
09/13/2013 $33,539,000.00
10/13/2013 $31,207,000.00
11/13/2013 $29,020,000.00
12/13/2013 $26,667,000.00
01/13/2014 $24,458,000.00
02/13/2014 $22,239,000.00
03/13/2014 $19,544,000.00
04/13/2014 $17,544,000.00
05/13/2014 $15,223,000.00
06/13/2014 $13,040,000.00
07/13/2014 $10,699,000.00
08/13/2014 $ 8,699,000.00
09/13/2014 $ 6,699,000.00
10/13/2014 $ 3,874,000.00
11/13/2014 $ 71,000.00
12/13/2014 $ 0.00
A-3
