EXHIBIT 4.1
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
XXXXX FARGO BANK, N.A.,
as General Master Servicer,
LNR PARTNERS, INC.,
as General Special Servicer,
NCB, FSB,
as NCB Master Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION, as Trustee, Paying
Agent and Certificate Registrar.
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-IQ11
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions..................................................
Section 1.2 Calculations Respecting Mortgage Loans.......................
Section 1.3 Calculations Respecting Accrued Interest.....................
Section 1.4 Interpretation...............................................
Section 1.5 ARD Loan.....................................................
Section 1.6 Certain Matters with Respect to the Serviced Loan Groups.....
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................
Section 2.2 Acceptance by Trustee........................................
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and
Warranties..................................................
Section 2.4 Representations and Warranties...............................
Section 2.5 Conveyance of Interests......................................
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.............................................
Section 3.2 Registration.................................................
Section 3.3 Transfer and Exchange of Certificates........................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 3.5 Persons Deemed Owners........................................
Section 3.6 Access to List of Certificateholders' Names and Addresses....
Section 3.7 Book-Entry Certificates......................................
Section 3.8 Notices to Clearing Agency...................................
Section 3.9 Definitive Certificates......................................
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by the Master Servicers.........................
Section 4.1A P&I Advances with Respect to the Michigan Plaza Pari
Passu Loan..................................................
Section 4.2 Servicing Advances...........................................
Section 4.3 Advances by the Trustee......................................
Section 4.4 Evidence of Nonrecoverability................................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan.............................
Section 4.6 Reimbursement of Advances and Advance Interest...............
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections..................................................
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Accounts...................................
Section 5.3 Distribution Account, Excess Interest Sub-account and
Reserve Account.............................................
Section 5.4 Paying Agent Reports.........................................
Section 5.5 Paying Agent Tax Reports.....................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally......................................
Section 6.2 REMIC I......................................................
Section 6.3 REMIC II.....................................................
Section 6.4 Reserved.....................................................
Section 6.5 REMIC III....................................................
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.........................
Section 6.7 Net Aggregate Prepayment Interest Shortfalls.................
Section 6.8 Adjustment of Servicing Fees.................................
Section 6.9 Appraisal Reductions.........................................
Section 6.10 Compliance with Withholding Requirements.....................
Section 6.11 Prepayment Premiums and Yield Maintenance Charges............
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent...................
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent...
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans.................
Section 7.4 The Trustee and the Paying Agent May Own Certificates........
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent.......................................................
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent...
Section 7.7 Successor Trustee or Paying Agent............................
Section 7.8 Merger or Consolidation of Trustee or Paying Agent...........
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...................................................
Section 7.10 Authenticating Agents........................................
Section 7.11 Indemnification of the Trustee and the Paying Agent..........
Section 7.12 Fees and Expenses of Trustee and the Paying Agent............
Section 7.13 Collection of Moneys.........................................
Section 7.14 Trustee to Act; Appointment of Successor.....................
Section 7.15 Notification to Holders......................................
Section 7.16 Representations and Warranties of the Trustee and the
Paying Agent................................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent..............
Section 7.18 Appointment of a Fiscal Agent................................
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.........................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers..........................
Section 8.3 Master Servicers' General Power and Duties...................
Section 8.4 Primary Servicing and Sub-Servicing..........................
Section 8.5 Servicers May Own Certificates...............................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes...
Section 8.7 [Reserved]...................................................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files......
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of
the Certificateholders......................................
Section 8.10 Servicing Compensation.......................................
Section 8.11 Master Servicer Reports; Account Statements..................
Section 8.12 [Reserved]...................................................
Section 8.13 [Reserved]...................................................
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer.............................................
Section 8.16 Rule 144A Information........................................
Section 8.17 Inspections..................................................
Section 8.18 [Reserved]...................................................
Section 8.19 Specially Serviced Mortgage Loans............................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 8.21 Merger or Consolidation......................................
Section 8.22 Resignation of the Master Servicer...........................
Section 8.23 Assignment or Delegation of Duties by the Master Servicer....
Section 8.24 Limitation on Liability of the Master Servicers and Others...
Section 8.25 Indemnification; Third-Party Claims..........................
Section 8.26 Reserved.....................................................
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................
Section 8.28 Termination..................................................
Section 8.29 Procedure Upon Termination...................................
Section 8.30 Notification to Certificateholders...........................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY THE SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers..............................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of the Special Servicers....................................
Section 9.3 Sub-Servicers................................................
Section 9.4 Special Servicers' General Powers and Duties.................
Section 9.5 [Reserved]...................................................
Section 9.6 Release of Mortgage Files....................................
Section 9.7 Documents, Records and Funds in Possession of the Special
Servicers to Be Held for the Trustee........................
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers...................................................
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies................................
Section 9.10 Presentment of Claims and Collection of Proceeds.............
Section 9.11 Compensation to the Special Servicer.........................
Section 9.12 Realization Upon Defaulted Mortgage Loans....................
Section 9.13 Foreclosure..................................................
Section 9.14 Operation of REO Property....................................
Section 9.15 Sale of REO Property.........................................
Section 9.16 Realization on Collateral Security...........................
Section 9.17 [Reserved]...................................................
Section 9.18 [Reserved]...................................................
Section 9.19 [Reserved]...................................................
Section 9.20 Merger or Consolidation......................................
Section 9.21 Resignation of the Special Servicer..........................
Section 9.22 Assignment or Delegation of Duties by the Special
Servicers...................................................
Section 9.23 Limitation on Liability of the Special Servicers and
Others......................................................
Section 9.24 Indemnification; Third-Party Claims..........................
Section 9.25 Reserved.....................................................
Section 9.26 Special Servicers May Own Certificates.......................
Section 9.27 Tax Reporting................................................
Section 9.28 Application of Funds Received................................
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................
Section 9.30 Termination..................................................
Section 9.31 Procedure Upon Termination...................................
Section 9.32 Certain Special Servicer Reports.............................
Section 9.33 Special Servicers to Cooperate with the Master Servicers
and Paying Agent............................................
Section 9.34 Reserved.....................................................
Section 9.35 Reserved.....................................................
Section 9.36 Sale of Defaulted Mortgage Loans.............................
Section 9.37 Operating Adviser; Elections.................................
Section 9.38 Limitation on Liability of Operating Adviser.................
Section 9.39 Rights of Operating Adviser..................................
Section 9.40 Litigation Control...........................................
Section 9.41 Rights of the Holder of the Royal Airport Office B Note......
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans..........................................
Section 10.2 Procedure Upon Termination of Trust..........................
Section 10.3 Additional Trust Termination Requirements....................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..............................
Section 11.2 Access to List of Holders....................................
Section 11.3 Acts of Holders of Certificates..............................
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration.........................................
Section 12.2 Prohibited Transactions and Activities.......................
Section 12.3 Modifications of Mortgage Loans..............................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status......................................................
Section 12.5 Grantor Trust Administration.................................
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness........................
Section 13.2 Certain Information to be Provided by the Master
Servicers, the Special Servicers, any Primary Servicer
and the Trustee.............................................
Section 13.3 Filing Obligations...........................................
Section 13.4 Form 10-D Filings............................................
Section 13.5 Form 10-K Filings............................................
Section 13.6 Xxxxxxxx-Xxxxx Certification.................................
Section 13.7 Form 8-K Filings.............................................
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports..........................
Section 13.9 Annual Compliance Statements.................................
Section 13.10 Annual Reports on Assessment of Compliance with
Servicing Criteria..........................................
Section 13.11 Annual Independent Public Accountants' Servicing Report.....
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification.............................................
Section 13.13 Amendments..................................................
Section 13.14 Exchange Act Report Signatures; Article XIII Notices........
Section 13.15 Termination of the Trustee and Sub-Servicers................
ARTICLE XIV
ADDITIONAL SERVICING PROVISIONS
Section 14.1 Enforcement of Due-on-Sale and Due-on-Encumbrance
Clauses; Assumption Agreements; Other Provisions............
Section 14.2 Modifications, Waivers, Amendments and Consents..............
Section 14.3 Primary Servicer Authority...................................
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Binding Nature of Agreement..................................
Section 15.2 Entire Agreement.............................................
Section 15.3 Amendment....................................................
Section 15.4 GOVERNING LAW................................................
Section 15.5 Notices......................................................
Section 15.6 Severability of Provisions...................................
Section 15.7 Indulgences; No Waivers......................................
Section 15.8 Headings Not to Affect Interpretation........................
Section 15.9 Benefits of Agreement........................................
Section 15.10 Special Notices to the Rating Agencies......................
Section 15.11 Counterparts................................................
Section 15.12 Intention of Parties........................................
Section 15.13 Recordation of Agreement....................................
Section 15.14 Rating Agency Monitoring Fees...............................
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-2 Certificate
EXHIBIT A-4 Form of Class A-3 Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-M Certificate
EXHIBIT A-7 Form of Class A-J Certificate
EXHIBIT A-8 Form of Class B Certificate
EXHIBIT A-9 Form of Class C Certificate
EXHIBIT A-10 Form of Class D Certificate
EXHIBIT A-11 Form of Class E Certificate
EXHIBIT A-12 Form of Class F Certificate
EXHIBIT A-13 Form of Class G Certificate
EXHIBIT A-14 Form of Class H Certificate
EXHIBIT A-15 Form of Class J Certificate
EXHIBIT A-16 Form of Class K Certificate
EXHIBIT A-17 Form of Class L Certificate
EXHIBIT A-18 Form of Class M Certificate
EXHIBIT A-19 Form of Class N Certificate
EXHIBIT A-20 Form of Class O Certificate
EXHIBIT A-21 Form of Class P Certificate
EXHIBIT A-22 Form of Class EI Certificate
EXHIBIT A-23 Form of Class R-I Certificate
EXHIBIT A-24 Form of Class R-II Certificate
EXHIBIT A-25 Form of Class R-III Certificate
EXHIBIT A-26 Form of Class X Certificate
EXHIBIT A-27 Form of Class X-Y 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 for
Transfers of REMIC Residual Certificates (Section
3.3(e))
EXHIBIT E-2 Form of Transferor Certificate for Transfers of
REMIC Residual Certificates (Section 3.3(e))
EXHIBIT F Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT J List of Loans to Which Excess Servicing Fees Are
Paid
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (MSMC)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (IXIS)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (MM)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV
(NCB, FSB)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (UCMFI)
EXHIBIT K-6 Form of Mortgage Loan Purchase Agreement VI
(SunTrust)
EXHIBIT K-7 Form of Mortgage Loan Purchase Agreement VII
(NCCB)
EXHIBIT L [Reserved]
EXHIBIT M Form of Monthly Certificateholders Report (Section
5.4(a))
EXHIBIT N Reserved
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1A Form of Power of Attorney to General Master
Servicer (Section 8.3(c))
EXHIBIT S-1B Form of Power of Attorney to NCB Master Servicer
(Section 8.3(c))
EXHIBIT S-2A Form of Power of Attorney to General Special
Servicer (Section 9.4(a))
EXHIBIT S-2B Form of Power of Attorney to Co-op Special
Servicer (Section 9.4(a))
EXHIBIT T Form of Subordination Agreement for NCB, FSB
Subordinate Debt
EXHIBIT U Reserved
EXHIBIT V Reserved
EXHIBIT W Reserved
EXHIBIT X Reserved
EXHIBIT Y Investor Certification (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification regarding
Defeasance of Mortgage Loan (Section 8.3(h))
EXHIBIT AA Additional Disclosure Notification
EXHIBIT BB-1 Form of Xxxxxxxx-Xxxxx Certification (Section
13.6)
EXHIBIT BB-2 Form of Master Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-3 Form of Special Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-4 Form of Trustee Performance Certification
(Section 13.6)
EXHIBIT BB-5 Form of Reporting Sub-Servicer Performance
Certification (Section 13.6)
SCHEDULE I MSMC Loan Schedule
SCHEDULE II IXIS Loan Schedule
SCHEDULE III MM Loan Schedule
SCHEDULE IV NCB, FSB Loan Schedule and NCCB Loan Schedule
SCHEDULE V UCMFI Loan Schedule
SCHEDULE VI SunTrust Loan Schedule
SCHEDULE VII List of Escrow Accounts Not Currently Eligible
Accounts (Section 8.3(e))
SCHEDULE VIII Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE IX List of Mortgagors that are Third-Party
Beneficiaries Under Section 2.3(a)
SCHEDULE X Reserved
SCHEDULE XI Earn-Out Reserves
SCHEDULE XII List of Mortgage Loans for which a Scheduled
Payment is Due After the End of a Collection
Period
SCHEDULE XIII List of Mortgage Loans that Permit Voluntary
Principal Prepayment Without Payment of a Full
Month's Interest
SCHEDULE XIV [Reserved]
SCHEDULE XV [Reserved]
SCHEDULE XVI Relevant Servicing Criteria
SCHEDULE XVII Additional Form 10-D Disclosure
SCHEDULE XVIII Additional Form 10-K Disclosure
SCHEDULE XIX Form 8-K Disclosure Information
SCHEDULE XX Seller Sub-Servicers
THIS POOLING AND SERVICING AGREEMENT is dated as of June 1, 2006
(this "Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation,
as depositor (the "Depositor"), XXXXX FARGO BANK, N.A., as a master servicer
(the "General Master Servicer"), LNR PARTNERS, INC., as a special servicer (the
"General Special Servicer"), NCB, FSB, as a master servicer (the "NCB Master
Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a special servicer (the
"Co-op Special Servicer"), and LASALLE BANK NATIONAL ASSOCIATION, as trustee of
the Trust, as paying agent and as certificate registrar (the "Trustee," "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"), IXIS Real Estate
Capital Inc., as seller ("IXIS"), NCB, FSB, as seller ("NCB, FSB"),
Massachusetts Mutual Life Insurance Company, as seller ("MM"), SunTrust Bank, as
seller ("SunTrust"), Union Central Mortgage Funding, Inc., as seller ("UCMFI"),
and National Consumer Cooperative Bank, as seller ("NCCB"), and will be the
owner of the Mortgage Loans and the other property being conveyed by it to the
Trustee for inclusion in the Trust which is hereby created. On the Closing Date,
the Depositor will acquire (i) the REMIC I Regular Interests and the Class R-I
Certificates as consideration for its transfer to the Trust of the Mortgage
Loans (other than any Excess Interest payable thereon) and the other property
constituting REMIC I; (ii) the REMIC II Regular Interests and the Class R-II
Certificates as consideration for its transfer of the REMIC I Regular Interests
to the Trust; (iii) the REMIC III Certificates as consideration for its transfer
of the REMIC II Regular Interests to the Trust; and (iv) the Class EI
Certificates as consideration for its transfer of the Excess Interest to the
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 EI
Certificates representing in the aggregate the entire beneficial ownership of
the Class EI Grantor Trust.
Excess Interest received on the Mortgage Loans shall be held in the
Class EI Grantor Trust for the benefit of the Class EI Certificates. All
covenants and agreements made by the Depositor and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the REMIC II
Regular Interests, the REMIC Regular Certificates, the Class EI Certificates and
the Residual 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-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-J, Class B, Class C and Class D Certificates will be offered for
sale pursuant to the prospectus (the "Prospectus") dated March 14, 2006, as
supplemented by the free writing prospectus dated May 19, 2006 (together with
the Prospectus, the "Preliminary Prospectus Supplement"), and as further
supplemented by the final prospectus supplement dated May 24, 2006 (together
with the Prospectus, the "Final Prospectus Supplement") and the Class X, Class
X-Y, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P and Class EI Certificates will be offered for sale
pursuant to a Private Placement Memorandum dated May 24, 2006.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest (other than the Group X-Y REMIC I Regular Interests) 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 (as herein
defined) of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a latest possible maturity date set to the Final Rated
Distribution Date (as defined herein). Each Group X-Y REMIC I Regular Interest
will relate to a specific Specially Designated Co-op Loan. Each Group X-Y REMIC
I Regular Interest will have a Pass-Through Rate equal to the Class X-Y Strip
Rate, an initial notional amount equal to the Scheduled Principal Balance as of
the Cut-Off Date of the Specially Designated Co-op Loan to which such Group X-Y
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Final Rated Distribution Date. Excess Interest shall not be included as an asset
of REMIC I. The Class R-I Certificates will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance and no
Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests have been
paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition thereof. The
Class R-II Certificates will be designated as the sole Class of residual
interests in REMIC II and will have no Certificate Balance and no Pass-Through
Rate, but will be entitled to receive the proceeds of any assets remaining in
REMIC II after all Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component designation,
the corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class X Certificates (the
"Corresponding Components") and the Original Class REMIC II Certificate Balance
or Notional Balance for each Class of Principal Balance Certificates and the
Class X-Y Certificates (the "Corresponding Certificates").
Original
Original REMIC II Corresponding
Class Certificate Corresponding Certificate Components of
Corresponding Balance or REMIC II Regular Balance or Class X
Certificates Notional Balance Interests (1) Notional Balance Certificates (1)
------------- ----------------- ---------------- ---------------- ----------------
Class A-1 $51,720,000 A-1 $51,720,000 A-1
Class A-1A $329,905,000 A-1A $329,905,000 A-1A
Class A-2 $162,900,000 A-2 $162,900,000 A-2
Class A-3 $96,800,000 A-3 $96,800,000 A-3
Class A-4 $489,955,000 A-4 $489,955,000 A-4
Class A-M $161,611,000 A-M $161,611,000 A-M
Class A-J $147,471,000 A-J $147,471,000 A-J
Class X-Y $189,020,788 X-Y $189,020,788 N/A
Class B $30,302,000 B $30,302,000 B
Class C $12,121,000 C $12,121,000 C
Class D $22,221,000 D $22,221,000 D
Class E $16,161,000 E $16,161,000 E
Class F $14,141,000 F $14,141,000 F
Class G $18,182,000 G $18,182,000 G
Class H $14,141,000 H $14,141,000 H
Class J $8,080,000 J $8,080,000 J
Class K $4,041,000 K $4,041,000 K
Class L $4,040,000 L $4,040,000 L
Class M $6,060,000 M $6,060,000 M
Class N $6,061,000 N $6,061,000 N
Class O $2,020,000 O $2,020,000 O
Class P $18,181,631 P $18,181,631 P
------------
(1) The REMIC II Regular Interests and the Components of the Class X
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
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.
Initial Aggregate
REMIC Regular Approximate Certificate
Certificate Initial Pass- Balance Final Scheduled
Designation Through Rate (a) or Notional Amount Distribution Date (b)
---------------- ---------------- ------------------ --------------------
Class A-1 5.552% $51,720,000 4/15/2011
Class A-1A 5.765% $329,905,000 3/15/2016
Class A-2 5.693% $162,900,000 6/15/2011
Class A-3 5.739% $96,800,000 5/15/2015
Class A-4 5.775% $489,955,000 3/15/2016
Class A-M 5.779% $161,611,000 4/15/2016
Class A-J 5.779% $147,471,000 5/15/2016
Class X 0.030% $1,616,114,631 N/A
Class X-Y 0.100% $189,020,788 N/A
Class B 5.779% $30,302,000 5/15/2016
Class C 5.779% $12,121,000 5/15/2016
Class D 5.779% $22,221,000 6/15/2016
Class E 5.779% $16,161,000 6/15/2016
Class F 5.779% $14,141,000 5/15/2017
Class G 5.779% $18,182,000 12/15/2018
Class H 5.779% $14,141,000 10/15/2019
Class J 5.534% $8,080,000 2/15/2020
Class K 5.534% $4,041,000 6/15/2020
Class L 5.534% $4,040,000 1/15/2021
Class M 5.534% $6,060,000 2/15/2021
Class N 5.534% $6,061,000 4/15/2021
Class O 5.534% $2,020,000 4/15/2021
Class P 5.534% $18,181,631 5/15/2021
Class R-III (c) N/A N/A N/A
------------
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating 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) in the case of the REMIC Regular Certificates.
(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 REMIC
Regular Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
Class EI Grantor Trust
Each Class EI Certificate will be entitled to Excess Interest
(neither of which will be a part of any REMIC Pool). The parties intend that (i)
the portions of the Trust representing the Excess Interest and the Excess
Interest Sub-account shall be treated as a grantor trust under subpart E of Part
1 of subchapter J of Chapter 1 of Subtitle A of the Code and (ii) the Class EI
Certificates shall represent undivided beneficial interests in the portion of
the Trust consisting of the entitlement to receive Excess Interest
(collectively, the "Class EI Grantor Trust").
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $1,616,114,631.
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 the Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC Regular
Certificates will be designated as the "regular interests" in REMIC III and the
Class R-III Certificates (together with the REMIC Regular Certificates, the
"REMIC III Certificates") will be designated as the sole Class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
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:
"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,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X Certificates for each Distribution Date will equal the Accrued Component
Interest for the related Interest Accrual Period for all of the Components for
such Distribution Date. Accrued Certificate Interest on the Class X-Y
Certificates for each Distribution Date will equal the Class X-Y Interest
Amount.
"Accrued Component Interest" With respect to each Component of the
Class X Certificates for any Distribution Date, one month's interest at the
Class X Strip Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on a 30/360 basis and, with respect to any Component and any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of each Mortgaged Property securing any Loan Group).
"Additional Disclosure Notification" means the form of notification
to be included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Notification, which is attached hereto as
Exhibit AA.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 13.4.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 13.5.
"Additional Review Period" has the meaning set forth in Section
9.4(d).
"Additional Servicer" means each Affiliate of the Master Servicers,
MSMC, IXIS, NCB, FSB, the Trustee or the Depositor that Services any of the
Mortgage Loans and each Person, other than the Special Servicers, who is not an
Affiliate of the Master Servicers, MSMC, IXIS, NCB, FSB or the Depositor, and
who Services 10% or more of the Mortgage Loans (based on their Principal
Balance). For clarification purposes, the Trustee is an Additional Servicer.
"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees, (ii) Advance
Interest that cannot be paid from Late Fees and default interest in accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicers, the
Special Servicers, any Primary Servicer, the Certificate Registrar, the Trustee,
the Paying Agent (or any other Person) pursuant to the terms of this Agreement;
(iv) to the extent not otherwise paid, any federal, state, or local taxes
imposed on the Trust or its assets and paid from amounts on deposit in the
Certificate Accounts or Distribution Account, (v) the amount of any Advance plus
interest due thereon and Unliquidated Advances that are not recovered from the
proceeds of a Mortgage Loan or Loan Group upon a Final Recovery Determination
and (vi) to the extent not 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) which the Trust has not recovered, and in the judgment of the Master
Servicer (or the 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 each Whole Loan,
"Additional Trust Expense" shall not include any of the foregoing amounts that
have been recovered from the related Mortgagor or Mortgaged Property.
Notwithstanding anything in this Agreement to the contrary, "Additional Trust
Expenses" shall not include allocable overhead of a Master Servicer, a Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar such as
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses, and similar internal costs and expenses,
except to the extent specifically allowed in this Agreement. No Additional Trust
Expense consisting of any REMIC specific taxes payable in respect of the
Mortgage Loans or out of pocket expenses incurred by the Trust that are
allocable to the Mortgage Loans and that result from the inclusion of the
Mortgage Loans in a REMIC shall be allocated to the Royal Airport Office B Note.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan
that accrues interest on the basis of a 360-day year consisting of twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date, the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and with respect
to any Distribution Date, the 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 interest actually due on such Mortgage Loan on the Due Date
preceding such Distribution Date (less the Administrative Cost Rate for such
Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted
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 (in either case, unless the related Distribution Date
is the Final Distribution Date), shall be determined net of any amounts
transferred to the Interest Reserve Accounts and (ii) the Adjusted Mortgage Rate
for the loan accrual period relating to the Due Date in March (commencing in
March 2007) (or February if the related Distribution Date is the Final
Distribution Date) shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Accounts, provided, further, that if
the Maturity Date on any Mortgage Loan occurs on the Due Date in January or
February or if there is a Principal Prepayment on any Mortgage Loan on the Due
Date in January or February, then the Adjusted Mortgage Rate shall be determined
taking into account the addition of any amounts withdrawn from the Interest
Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable to a Master Servicer, a
Special Servicer or the Trustee on outstanding Advances (other than Unliquidated
Advances) pursuant to Section 4.5 of this Agreement.
"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, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"Advance Report Date" means the third Business Day prior to each
Distribution Date.
"Adverse Grantor Trust Event" shall mean any action taken by a
Person or the failure of a Person to take any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Class EI Grantor Trust as a grantor trust under the Grantor Trust
Provisions or result in the imposition of a tax upon the Class EI Grantor Trust
or 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 (other than the Group X-Y REMIC I Regular Interests), the REMIC II
Regular Interests (other than REMIC II Regular Interest X-Y) or the REMIC
Regular Certificates, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, REMIC I Regular Interests
(other than the Group X-Y REMIC I Regular Interests) or REMIC II Regular
Interests (other than REMIC II Regular Interest X-Y), 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 date on which a substantial principal payment on an ARD Loan is anticipated
to be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified MAI
appraiser having at least five years' experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan or
Serviced Loan Group, 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
(or Serviced Loan Group) 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 such Mortgage Loan (or Serviced Loan Group, as applicable),
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 (or Serviced Loan Group, as applicable)
(or, in the case of an REO Property, the related REO Mortgage Loan) less the
undrawn principal amount of any letter of credit or debt service reserve, if
applicable, that is then securing such Mortgage Loan, (ii) to the extent not
previously advanced by the Master Servicer or the Trustee, all accrued and
unpaid interest on such Mortgage Loan (or Serviced Loan Group, as applicable)
(or, in the case of an REO Property, the related REO Mortgage Loan), at a per
annum rate equal to the Mortgage Rate, (iii) all unreimbursed Advances
(including Unliquidated Advances) and interest on Advances (other than
Unliquidated Advances) at the Advance Rate with respect to such Mortgage Loan
(or Serviced Loan Group, as applicable) (or, in the case of an REO Property, the
related REO Mortgage Loan) and (iv) to the extent funds on deposit in any
applicable Escrow Accounts are not sufficient therefor, and to the extent not
previously advanced by the applicable Master Servicer, the applicable Special
Servicer or the Trustee, all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents and other
amounts which were required to be deposited in any Escrow Account (but were not
deposited) in respect of such Mortgaged Property or REO Property, as the case
may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be, plus the full amount of any escrows held
by or on behalf of the Trustee as security for the Mortgage Loan (or Serviced
Loan Group, as applicable) (less the estimated amount of the obligations
anticipated to be payable in the next twelve months to which such escrows
relate). With respect to each Mortgage Loan that is cross-collateralized with
any other Mortgage Loan, the value of each Mortgaged Property that is security
for each Mortgage Loan in such cross-collateralized group, as well as the
outstanding amounts under each such Mortgage Loan shall be taken into account
when calculating such Appraisal Reduction. Each Appraisal or internal valuation
for a Required Appraisal Loan shall be updated annually, for so long as an
Appraisal Reduction exists, from the date of such Appraisal or internal
valuation. In addition, the Operating Adviser may at any time (including,
without limitation, any time following a request by the holder of the Royal
Airport Office B Note or Operating Adviser on its behalf, to advise if there has
been a determination that such holder is no longer the "Directing Lender" under
the related Co-Lender Agreement), request the applicable Special Servicer to
obtain (at the Operating Adviser's expense) an updated Appraisal, with a
corresponding adjustment to the amount of the Appraisal Reduction. 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 (or Serviced Loan Group, as applicable) shall be reduced
to reflect any Realized Principal Losses on the Required Appraisal Loan (or
Serviced Loan Group, as applicable). Each Appraisal Reduction will be reduced to
zero as of the date the related Mortgage Loan (or Serviced Loan Group, as
applicable) is brought current under the then current terms of the Mortgage Loan
for at least three consecutive months, and no Appraisal Reduction will exist as
to any Mortgage Loan (or Serviced Loan Group, as applicable) after it has been
paid in full, liquidated, repurchased or otherwise disposed of. In the case of
the Michigan Plaza Pari Passu Loan, any Appraisal Reduction will be calculated
in respect of the Michigan Plaza Pari Passu Loan and the Michigan Plaza
Companion Loan and then allocated between the Michigan Plaza Pari Passu Loan and
the Michigan Plaza Companion Loan pro rata according to their respective
Principal Balances. In the case of the Royal Airport Office Mortgage Loan, any
Appraisal Reduction will be calculated in respect of the Royal Airport Office
Mortgage Loan and the Royal Airport Office B Note and then allocated first, to
the Royal Airport Office B Note up to its outstanding principal balance and
then, to the Royal Airport Office Mortgage Loan.
"Appraised Value" means (i) with respect to any Mortgaged Property
(other than the Mortgaged Property securing a Co-op 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
General Master Servicer, the NCB Master Servicer or the General Special
Servicer, as applicable or, in the case of an internal valuation performed by
the General Special Servicer pursuant to Section 6.9, the value of the Mortgaged
Property determined by such internal valuation and (ii) with respect to each
Mortgaged Property securing a Co-op Mortgage Loan, the appraised value thereof
determined by an Appraisal of the Mortgaged Property securing such Co-op
Mortgage Loan made by an Independent appraiser selected by the NCB Master
Servicer or the Co-op Special Servicer, as applicable, or in the case of an
internal valuation performed by the Co-op Special Servicer pursuant to Section
6.9, the value of the Mortgaged Property determined by such internal valuation,
each determined as if such property were operated as a cooperatively-owned
multifamily residential building (generally equaling the gross sellout value of
all cooperative units in such residential cooperative property (applying a
discount as determined by the appraiser for rent regulated and rent controlled
units) plus the amount of the underlying debt encumbering such residential
cooperative property).
"ARD Loan" means the Mortgage Loans designated on the Mortgage Loan
Schedule as Mortgage Loan Xx. 0, Xxxxxxxx Xxxx Xx. 00, Xxxxxxxx Loan No. 29 and
Mortgage Loan No. 37, collectively.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan 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 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
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 granted
or agreed to by the applicable Master Servicer or the applicable 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 described in the preceding clause of this
definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage
Loan.
"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) hereof.
"Available Distribution Amount" means, with respect to any
Distribution Date and the Mortgage Loans, an amount equal to the aggregate of
the following amounts (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 (x) received by a Master Servicer or a Special Servicer
through the end of the related Collection Period (other than any portion thereof
that constituted a portion of the Available Distribution Amount for a prior
Distribution Date as described in clause (a)(y) below) or (y) remitted by the
applicable Master Servicer on the related Master Servicer Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that were
deposited in the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including amounts
payable to the Master Servicers in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicers in respect of unpaid Special Servicer Compensation, the Trustee in
respect of unpaid Trustee Fees or to the parties entitled thereto in respect of
the unpaid Excess Servicing Fees), (iii) amounts that constitute Prepayment
Premiums or Yield Maintenance Charges, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year (unless the
related Distribution Date is the final Distribution Date), the Interest Reserve
Amounts with respect to Interest Reserve Loans deposited in the Interest Reserve
Accounts, (v) Excess Interest, (vi) in the case of each REO Property related to
a Serviced Loan Group, all amounts received with respect to such Serviced Loan
Group that are required to be paid to the holder of the related Serviced
Companion Loan, pursuant to the terms of the related Co-Lender Agreement (which
amounts will be deposited into the Serviced Companion Loan Custodial Account
pursuant to Section 5.1(c) and withdrawn from such account pursuant to Section
5.2(a)) and (vii) Scheduled Payments collected but due on a Due Date subsequent
to the related Collection Period (other than any portion thereof described in
clause (a)(y) above) 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 a
Master Servicer or the Trustee for such Distribution Date pursuant to Section
4.1 and/or Section 4.3, (ii) the aggregate amount of any Compensating Interest
payments made by the Master Servicers for such Distribution Date pursuant to the
terms hereof, and (iii) if a Distribution Date occurs in March of any year,
commencing March 2007 (or February if the related Distribution Date is the final
Distribution Date) or if a Maturity Date or Principal Prepayment falls on a
January or February of any year, the aggregate of the Interest Reserve Amounts
then held on deposit in the Interest Reserve Accounts in respect of the related
Interest Reserve Loan or Interest Reserve Loans.
"Balloon Mortgage Loan" means a Mortgage Loan (or Serviced Loan
Group, as applicable) 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.
"Banking Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"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 or Yield Maintenance Charge, and with respect to any Class of
Certificates, a fraction (A) whose numerator is the greater of (x) zero and (y)
the difference between (i) the Pass-Through Rate on that Class of Certificates
and (ii) the Discount Rate used in calculating the Prepayment Premium or Yield
Maintenance Charge 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 or, with
respect to a Specially Designated Co-op Mortgage Loan, the Mortgage Rate on such
Specially Designated Co-op Mortgage Loan minus the Class X-Y Strip Rate and (ii)
the Discount Rate used in calculating the Prepayment Premium or Yield
Maintenance Charge 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.
"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 a Saturday, a Sunday or a
day on which banking institutions in the states where the Certificate Account,
Distribution Account, Trustee, a Master Servicer, a Primary Servicer or a
Special Servicer are located and are authorized or obligated by law or executive
order to remain closed. Upon the request of any party to this Agreement or the
Operating Adviser, the Trustee, the Paying Agent, each Master Servicer, each
Special Servicer and each Primary Servicer shall provide such party a list of
the legal holidays observed by such entity; provided that each Primary Servicer
shall be required to provide the Operating Adviser and the Master Servicers on
or before the first day of January of each calendar year with a list of each day
that will not be a "Business Day" in the jurisdiction of such Primary Servicer
during such calendar year.
"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 applicable Special Servicer to
the applicable Master Servicer), of each Cash Liquidation.
"Category 1 Requests" has the meaning set forth in the Primary
Servicing Agreements for the SunTrust Loans and the MM Loans.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by each Master Servicer (or any Sub-Servicer or
Primary 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 X Certificates, the Class X-Y Certificates, the Class EI
Certificates and the Residual Certificates) or Interest (other than the Group
X-Y REMIC I Regular Interests and the REMIC II Regular Interest X-Y) as of any
Distribution Date, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (in the case
of a Certificate), or as ascribed thereto in the Preliminary Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a) or Section 6.3(a), as the case may be and (ii) all
Realized Losses allocated or deemed to have been allocated to such Interest or
Certificate pursuant to Section 6.6, plus (B) an amount equal to the amounts
identified in clause (I)(C) of the definition of Principal Distribution Amount,
such increases to be allocated to the Principal Balance Certificates or
Interests in sequential order (i.e., to the most senior Class first), in each
case up to the amount of Realized Losses previously allocated thereto and not
otherwise reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" has the meaning provided 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 provided in the definition of
"Holder."
"Certificates" means, collectively, the REMIC III Certificates, the
Class EI Certificates, the Class R-I Certificates, the Class R-II Certificates
and the Class R-III Certificates.
"Certification Parties" has the meaning set forth in Section 13.6.
"Certifying Person" has the meaning set forth in Section 13.6.
"Class" means, with respect to the REMIC I Regular Interests, REMIC
II Regular Interests, REMIC III Certificates and Class EI Certificates, any
class of such Certificates or Interests.
"Class A Certificates" means the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-4
Certificates, collectively.
"Class A-1 Certificates," "Class A-1A Certificates," "Class A-2
Certificates," "Class A-3 Certificates," "Class A-4 Certificates," "Class A-M
Certificates," "Class A-J Certificates," "Class X Certificates," "Class X-Y
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 EI
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 A-2," "Class A-3," "Class X-0," "Xxxxx X-X," "Class A-J," "Class
X," "Class X-Y," "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 EI," "Class R-I," "Class R-II" and "Class R-III,"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits A-1 through A-27.
"Class A-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1.
"Class A-1A Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A.
"Class A-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2.
"Class A-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-3 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3.
"Class A-4 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4.
"Class A-M Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-M Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-M.
"Class A-J Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-J Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-J.
"Class B Component" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B.
"Class C Component" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C.
"Class D Component" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D.
"Class E Component" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E.
"Class EI Grantor Trust" means that portion of the Trust consisting
of Excess Interest and the Excess Interest Sub-account.
"Class F Component" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F.
"Class G Component" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G.
"Class H Component" means a component of the beneficial interest in
REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H.
"Class J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K Component" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K.
"Class L Component" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class X Notional Amount" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"Class X Strip Rate" means, with respect to any Class of 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.
"Class X-Y Interest Amount" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest accrued on the Class X-Y
Notional Amount during the related Interest Accrual Period at a rate equal to
one twelfth of a per annum rate equal to the Weighted Average Class X-Y Strip
Rate.
"Class X-Y Notional Amount" means, with respect to any Distribution
Date, the aggregate of the Principal Balances of the Specially Designated Co-op
Mortgage Loans (or any successor REO Mortgage Loans), reduced by any Advances of
principal on such Specially Designated Co-op Mortgage Loans (or any successor
REO Mortgage Loans) and losses on those Specially Designated Co-op Mortgage
Loans previously allocated to the Certificateholders.
"Class X-Y Strip Rate" means, with respect to any Specially
Designated Co-op Mortgage Loan (and any successor REO Mortgage Loan with respect
thereto), for any Distribution Date, a rate per annum equal to either: (1) if
such Mortgage Loan accrues interest on a 30/360 basis, 0.10%; and (2) if such
Mortgage Loan accrues interest on a basis other than that of a 30/360 basis, the
product of (a) 0.10%, multiplied by (b) a fraction, the numerator of which is
the number of days in the Interest Accrual Period that corresponds to such
Distribution Date, and the denominator of which 30.
"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" means Clearstream Banking Luxembourg, societe anonyme.
"Closing Date" means on or about June 8, 2006.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Bond Level File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "Bond
Level File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, as applicable.
"CMSA Collateral Summary File" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Collateral Summary File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee, as applicable.
"CMSA Comparative Financial Status Report" means a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Comparative Financial Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Delinquent Loan Status Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Delinquent Loan Status Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Financial File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Historical Liquidation Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Liquidation Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" means a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Loan Level Reserve/LOC Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Level Reserve/LOC Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Loan Level Reserve/LOC Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Loan Periodic Update File" means a monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Loan Periodic
Update File" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer, the Special Servicer or the Trustee, as
applicable.
"CMSA Loan Setup File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Loan Setup File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer, the Special Servicer or the
Trustee, as applicable.
"CMSA NOI Adjustment Worksheet" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "NOI Adjustment Work" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Operating Statement Analysis Report" means a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Operating Statement Analysis
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Property File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Reconciliation of Funds" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report" means a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof are modified,
expanded or otherwise changed from time to time by the CMSA. With respect to new
reports created and approved by the CMSA, such new reports will be used in this
transaction (provided, however, that insofar as any such new report requires the
presentation of information in addition to that called for by the current CMSA
reports, such new report is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable) and the Depositor shall direct the Trustee as
to whether such reports will be Restricted Servicer Reports or Unrestricted
Servicer Reports. The Trustee shall provide the Master Servicer and Special
Servicer with a copy of such direction within two Business Days after its
receipt. In the case of each Mortgaged Property securing a Co-op Mortgage Loan,
the respective files and reports comprising the CMSA Reports shall present the
Projected Net Cash Flow for such Mortgaged Property and the Debt Service
Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to residential
cooperative properties, if and to the extent that such file or report requires
preparation and/or submission of data concerning net cash flow or debt service
coverage.
"CMSA Servicer Watch List" means a report substantially in the form
of, and containing the information called for in, the downloadable form of
"Servicer Watch List" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Servicer Watch List" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable; provided, however, that, notwithstanding the foregoing,
the NCB Master Servicer shall not be required to include a Co-op Mortgage Loan
on the Servicer Watch List on account of the Debt Service Coverage Ratio of such
Co-op Mortgage Loan, unless such Debt Service Coverage Ratio shall fall below
0.90x (for purposes of the calculation of the Debt Service Coverage Ratio of a
Co-op Mortgage Loan for this definition only, the Projected Net Cash Flow of the
related Mortgaged Property shall be adjusted to reflect the actual expenses
incurred by the Mortgagor).
"CMSA Special Servicer Loan File" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Special Servicer Loan File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Special Servicer, as
applicable.
"CMSA Website" means the CMSA's website located at "xxx.xxxx.xxx" or
such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" 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.
"Co-Lender Agreement" means the Michigan Plaza Co-Lender Agreement
or the Royal Airport Office Co-Lender Agreement, as the context may require.
"Collection Period" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution Date
and each Master Servicer, an amount equal to the excess of (A) Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loans
during the related Collection Period, over (B) the aggregate of the Prepayment
Interest Excesses received in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loan
during the same related Collection Period. Notwithstanding the foregoing, such
Compensating Interest shall not (i) exceed the portion of the aggregate Master
Servicing Fee accrued at a rate per annum equal to 2 basis points for the
related Collection Period calculated in respect of such Master Servicer's
Mortgage Loans, including REO Mortgage Loans, if such Master Servicer applied
the subject Principal Prepayment in accordance with the terms of the related
Mortgage Loan documents and (ii) be required to be paid on any Prepayment
Interest Shortfalls incurred in respect of any Specially Serviced Mortgaged
Loans.
"Component" means each of the Class A-1 Component, Class A-1A
Component, Class A-2 Component, Class A-3 Component, Class A-4 Component, Class
A-M Component, Class A-J Component, Class B Component, Class C Component, Class
D Component, Class E Component, Class F Component, Class G Component, Class H
Component, Class J Component, Class K Component, Class L Component, Class M
Component, Class N Component, Class O Component and Class P Component.
"Component Notional Amount" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan (and, if applicable, the related
Serviced Companion Loan). With respect to the Mortgaged Property securing a
Serviced Loan Group, only the portion of such amounts payable to the holder of
the Michigan Plaza Pari Passu Loan or Royal Airport Office Mortgage Loan, as
applicable, shall be included in Condemnation Proceeds.
"Controlling Class" means the most subordinate Class of REMIC
Regular Certificates outstanding at any time of determination; provided that, if
the aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular Certificates
outstanding. As of the Closing Date, the Controlling Class will be the Class P
Certificates.
"Controlling Person" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date
it is first included in the Trust, is secured by a Mortgage that encumbers a
residential cooperative property, as identified on Schedule IV hereto.
"Co-op Special Servicer" means National Consumer Cooperative Bank,
or any successor Special Servicer as herein provided, including without
limitation any successor Special Servicer appointed pursuant to Section 9.39
hereof.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related assets of the Trust.
"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, Xxxxxxxx 00000, Attention: Global Securities and Trust Services--Xxxxxx
Xxxxxxx Capital I Inc., Series 2006-IQ11, 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 and the Special
Servicers.
"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 or Interests having an initial
Certificate Balance (in the case of the Group PB REMIC I Regular Interests) or
initial Notional Amount (in the case of the Group X-Y REMIC I Regular
Interests), equal to the Principal Balance of such Mortgage Loan outstanding as
of the Cut-Off Date, after taking into account all principal and interest
payments made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component.
"Cross-Collateralized Loan" has the meaning set forth in Section
2.3(a) hereof.
"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 June 1, 2006. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on June 1, 2006 and
Scheduled Payments due in June 2006 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on June 1, 2006,
not the actual day on which such Scheduled Payments were due.
"Debt Service Coverage Ratio" means either, (a) with respect to any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of
determination, the ratio of (1) the annual, year-end net cash flow of the
related Mortgaged Property or Mortgaged Properties, determined as provided in
the NOI Adjustment Worksheet based on the most recent annual, year-end operating
statements provided by the Mortgagor (or if no annual, year-end operating
statements have been provided, based on such information provided by the
Mortgagor, including without limitation rent rolls and other unaudited financial
information, as the applicable Master Servicer shall determine in accordance
with the Servicing Standard) to (2) the annualized amount of debt service
payable on that Mortgage Loan or, in the case of (x) the Michigan Plaza Loan
Group, on both the Michigan Plaza Mortgage Loan and the Michigan Plaza Companion
Loan, (y) the Royal Airport Office Loan Group, on the Royal Airport Office
Mortgage Loan only or (z) in the case of the Royal Airport Office B Note, on the
entire Royal Airport Office Loan Group or, in the case of Mortgage Loans that
are interest-only, where periodic payments are interest-only for a certain
amount of time after origination after which date the Mortgage Loan amortizes
principal for the remaining term of the Mortgage Loan, the annualized amount of
debt service that will be payable under the Mortgage Loan after the beginning of
the amortization term of the Mortgage Loan, or (b) with respect to any Co-op
Mortgage Loan, as of any date of determination, the ratio of (1) the Projected
Net Cash Flow for the related Mortgaged Property on an annualized basis to (2)
the annualized amount of debt service payable on that Co-op Mortgage Loan.
"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 or Serviced Companion Loan, 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 as a
result of any such proceeding, but not forgiven, the amount of the 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 Loan) that is in default under the terms of the applicable Mortgage
Loan documentation and for which any applicable grace period has expired and, in
the case of the Royal Airport Office Loan Group, remains unremedied by the
exercise of cure rights for the applicable grace period under the related
Co-Lender Agreement.
"Defeasance Collateral" means, with respect to any Defeasance Loan,
"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 (or Serviced Companion
Loan) which requires or permits the related Mortgagor (or permits the holder of
such Mortgage Loan or Serviced Companion Loan, as applicable, to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan or
Serviced Loan Group, a valuation by a court of competent jurisdiction of the
Mortgaged Property (or, with respect to the Michigan Plaza Pari Passu Loan, the
pro rata portion of the valuation allocable to the Michigan Plaza Pari Passu
Loan) relating to such Mortgage Loan (or Serviced Loan Group, as applicable) in
an amount less than the then outstanding indebtedness under such Mortgage Loan
(or Serviced Loan Group, as applicable), 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 (or Serviced Loan Group, as applicable).
"Deficient Valuation Amount" means (i) with respect to each Mortgage
Loan or Serviced Loan Group, the amount by which the total amount due with
respect to such Mortgage Loan or Serviced Loan Group, as applicable (excluding
interest not yet accrued), including the Principal Balance of such Mortgage Loan
(or Serviced Loan Group) 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 the Michigan Plaza Pari Passu Loan or Royal Airport Office
Mortgage Loan, the Deficient Valuation Amount for the related Serviced Loan
Group that is borne by the holder of the Michigan Plaza Pari Passu Loan or Royal
Airport Office Mortgage Loan under the related Co-Lender Agreement.
"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 Blanket Letter of Representations
dated the Closing Date between the Depositor and the Depository.
"Determination Date" means (a), with respect to any Distribution
Date and any of the Mortgage Loans other than the NCB, FSB Loans, the NCCB Loan
and the MM Loans, the earlier of (i) the 10th day of the month in which such
Distribution Date occurs or, if such day is not a Business Day, the immediately
preceding Business Day, and (ii) the 5th Business Day prior to the related
Distribution Date, commencing July 10, 2006, (b) with respect to any
Distribution Date and any of the NCB, FSB Loans and the NCCB Loan, the earlier
of (i) the 11th 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 July 10,
2006 or (c) with respect to any Distribution Date and any of the MM Loans, the
10th day of the month in which such Distribution Date occurs or, if such day is
not a Business Day, the immediately following Business Day, commencing July 10,
2006.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property 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 applicable Special Servicer on behalf of the Trustee) shall not
be considered to Directly Operate an REO Property solely because the Trustee (or
the applicable Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs, 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 applicable Master Servicer will select a comparable publication
to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMIC Pools, or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership interest in
a Residual Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates or Interests, the sum of (A)
Accrued Certificate Interest in respect of such Class or Interest, reduced (to
not less than zero) by (i) any Net Aggregate Prepayment Interest Shortfalls for
such Class of Certificates or Interests, allocated on such Distribution Date to
such Class 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 Interest pursuant to Section 6.6, plus (B) the
Unpaid Interest, plus (C) if the Aggregate Certificate Balance is reduced
because of a diversion of principal in accordance with Section 5.2(a)(II)(iv),
and there is a subsequent recovery of amounts as described in Section 6.6(c)(i),
then interest at the applicable Pass-Through Rate that would have accrued and
been distributable with respect to the amount by which the Aggregate Certificate
Balance was so reduced, which interest shall accrue from the date that the
related Realized Loss is allocated through the end of the Interest Accrual
Period related to the Distribution Date on which such amounts are subsequently
recovered.
"Distribution Account" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"Distribution Date" means the 15th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing July 17,
2006.
"Due Date" means, with respect to a Mortgage Loan or Serviced
Companion Loan, the date on which a Scheduled Payment is first due without the
application of grace periods.
"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 "F-1" by Fitch and "A-1" by S&P, if the deposits are
to be held in the account for 30 days or less, or (B) long term unsecured debt
obligations are rated at least "AA" or "A" (without regard to any plus or minus)
by Fitch and "AA-" (or "A" (without regard to any plus or minus), if the
short-term unsecured debt obligations are rated at least "A-1") by S&P, if the
deposits are to be held in the account more than 30 days, (ii) a segregated
trust account or accounts maintained in the trust department of the Trustee, the
Paying Agent or other financial institution having a combined capital and
surplus of at least $50,000,000 and subject to regulations regarding fiduciary
funds on deposit similar to Title 12 of the Code of Federal Regulations Section
9.10(b), (iii) an account or accounts of a depository institution acceptable to
the Rating Agencies, as evidenced by Rating Agency Confirmation with respect to
the use of any such account as a Certificate Account or the Distribution
Account, (iv) in the case of Escrow Accounts with respect to NCB, FSB Loans or
the NCCB Loan, any account maintained with NCB, FSB (provided that NCB, FSB has
a combined capital and surplus of at least $40,000,000) (v) with respect to the
Primary Servicer for the MM Loans, the Centennial Government Trust, until the
date that is 60 days after the Closing Date or (vi) with respect to certain good
faith deposits for certain of the UCMFI Loans, any account maintained on behalf
of UCMFI held at PNC Bank, National Association, until the date that is 60 days
after the Closing Date. 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, N.A., 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 "F-1" in the case of Fitch and "A-1" in the case of S&P, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at least "AA" in the case of Fitch and "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, 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 Servicers, the Paying Agent or any Affiliate
of a Master Servicer, a Special Servicer, the Paying Agent or the Trustee,
acting in its commercial capacity) incorporated or organized under the
laws of the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of such
depository institution or trust company are rated "F-1" by Fitch and "A-1"
(without regard to any plus or minus) by S&P or the long-term unsecured
debt obligations of such depository institution or trust company have been
assigned a rating by each Rating Agency at least equal to "AA" by Fitch
and "AA-" by S&P or its equivalent or, in each case, if not rated by a
Rating Agency, then such Rating Agency has issued a Rating Agency
Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as 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 at least "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 the Certificate Account;
(v) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "F-1+" by Fitch and "A-1" (without regard to any plus or minus) by
S&P (or for which Rating Agency Confirmation is obtained with respect to
such ratings);
(vi) units of investment funds (including money market funds) that
are rated in the highest long term category by Fitch and "AAAm" by S&P (or
if not rated by any such Rating Agency, then such Rating Agency has issued
a Rating Agency Confirmation);
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose long
term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and S&P, or for which Rating Agency Confirmation is obtained with
respect to such ratings; provided that, with respect to S&P, such
agreements state that funds may be withdrawn at par without penalty;
(viii) any money market funds (including those managed or advised by
the Paying Agent or its Affiliates) that maintain a constant asset value
and that are rated "AAA" (or its equivalent) by Fitch (if so rated by
Fitch) and "AAAm" or "AAAm G" (or its equivalent) by S&P, and any other
demand, money market or time deposit, or any other obligation, security or
investment, with respect to which Rating Agency Confirmation has been
obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion
of Counsel delivered to the Trustee and the Paying Agent by the applicable
Master Servicer or Special Servicer at the applicable Master Servicer's or
Special 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 Certificate
Accounts) 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.
"Escrow Account" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a Mortgage
Loan 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" means the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such 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 Mortgage Loan documents) over
(ii) interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account deemed
to be a sub-account of the Distribution Account, in accordance with the
provisions of Section 5.3. The Excess Interest Sub-account shall not be an asset
of any REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage
Loan or Serviced Loan Group, as applicable, the excess of (i) Liquidation
Proceeds of a Mortgage Loan or Serviced Loan Group, as applicable, 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 a Serviced Loan Group, a Principal Prepayment
in full had been made with respect to the Michigan Plaza Pari Passu Loan, the
Royal Airport Office Mortgage Loan and the related Serviced Companion Loan, as
applicable) on the date such proceeds were received plus accrued and unpaid
interest with respect to such Mortgage Loan and all expenses (including
Additional Trust Expenses and Unliquidated Advances) with respect to such
Mortgage Loan or Serviced Loan Group, as applicable.
"Excess Servicing Fee" means, with respect to the Mortgage Loans or
the Michigan Plaza Companion Loan for which an "excess servicing fee rate" is
designated on the Mortgage Loan Schedule, the monthly fee payable to the parties
set forth on Exhibit J hereto or their successors and assigns, as holders of
excess servicing rights, which fee shall accrue on the Scheduled Principal
Balance of each such Mortgage Loan immediately prior to the Due Date occurring
in each month at the per annum rate (determined in the same manner as the
applicable Mortgage Rate for such Mortgage Loan is determined for such month)
specified on the Mortgage Loan Schedule (the "Excess Servicing Fee Rate"). Each
holder of a right to receive Excess Servicing Fees is entitled to Excess
Servicing Fees only with respect to the Mortgage Loans or the Michigan Plaza
Companion Loan as indicated on Exhibit J hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A IAI Global
Certificate, as applicable.
"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 Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated
Class of Certificates, the Distribution Date in October 2042.
"Final Recovery Determination" means a determination with respect
to: (i) any Mortgage Loan (or Serviced Companion Loan) other than a Specially
Serviced Mortgage Loan), by the applicable Master Servicer in consultation with
the applicable Special Servicer and (ii) with respect to any Specially Serviced
Mortgage Loan (including a Mortgage Loan (or Serviced Companion Loan) that
became an REO Property) by the applicable Special Servicer, 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 which the applicable Master Servicer
or the applicable Special Servicer, as the case may be, expects to be finally
recoverable on such Mortgage Loan (or Serviced Companion Loan), without regard
to any obligation of such Master Servicer or the Trustee, as the case may be, to
make payments from its own funds pursuant to Article IV hereof, have been
recovered. With respect to each Mortgage Loan that is cross-collateralized by
Mortgaged Properties securing other Mortgage Loans, all of the Mortgaged
Properties and other security must be considered in connection with any such
Final Recovery Determination. The applicable 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 or REO Mortgage Loan upon making such determination. The applicable Master
Servicer shall promptly 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 the ARD Loan is assumed to be repaid on its Anticipated Repayment Date.
"Fitch" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in
Section 13.7.
"General Master Servicer" means Xxxxx Fargo Bank, N.A. and its
permitted successors or assigns.
"General Special Servicer" means LNR Partners, Inc., or any
successor General Special Servicer as herein provided, including without
limitation any successor General Special Servicer appointed pursuant to Section
9.39.
"Global Certificate" means any Rule 144A IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the Code
relating to grantor trusts, which appear in subpart E, Part I of subchapter J,
and related provisions, and proposed, temporary and final Treasury regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any published
rulings, notice and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Group PB REMIC I Regular Interests" means, collectively, all of the
REMIC I Regular Interests other than the Group X-Y REMIC I Regular Interests,
which are the REMIC I Regular Interests with principal balances.
"Group X-Y REMIC I Regular Interests" means, collectively, the REMIC
I Regular Interests, which represent interests in the Class X-Y Strip Rates with
respect to the Specially Designated Co-op Mortgage Loans, which are the REMIC I
Regular Interests without principal balances (but have notional amounts for
purposes of accruing interest).
"Holder" means the Person in whose name a Certificate is registered
on the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the
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 any 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 applicable
Special Servicer that would be an "independent contractor" with respect to a
REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC
Pool were a real estate investment trust (except that the ownership test set
forth in such Section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of the Aggregate Certificate Balance or
Notional Amount, as the case may be, of any Class of the Certificates (other
than the Residual Certificates), a Percentage Interest of 35% or more in the
Residual Certificates or such other interest in any Class of the Certificates or
of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which
shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool
does not receive or derive any income from such Person and provided that the
relationship between such Person and such REMIC is at arm's length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other
Person (including a Master Servicer or a 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 Review Period" has the meaning set forth in Section 9.4(d).
"Inspection Report" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
Inspection Form" available as of January 31, 2006 on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property Inspection Form" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"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.
"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
(or used to restore the related Mortgaged Property) pursuant to law, the related
Mortgage Loan or Serviced Loan Group, as applicable, or the Servicing Standard).
With respect to the Mortgaged Property securing a Serviced Loan Group, only the
portion of such amounts payable to the holder of the Michigan Plaza Pari Passu
Loan or Royal Airport Office Mortgage Loan, as applicable, shall be included in
Insurance Proceeds.
"Insured Environmental Event" has the meaning set forth in Section
9.1(f).
"Interest" means a REMIC I Regular Interest or a REMIC II Regular
Interest, as applicable.
"Interest Accrual Period" means, with respect to each Distribution
Date, for each Class of REMIC Regular Certificates, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior
to the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the
Master Servicers, the Special Servicers, 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 a 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.
"Investor-Based Exemption" means any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Laws.
"IXIS" has the meaning assigned in the Preliminary Statement hereto.
"IXIS Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"IXIS Sub-Servicer" means Laureate Capital LLC and NorthMarg
Capital, Inc., each in its capacity as sub-servicer of the IXIS Loans pursuant
to each IXIS Sub-Servicing Agreement.
"IXIS Sub-Servicing Agreement" means each agreement between Laureate
Capital LLC and NorthMarg Capital, Inc., respectively, and the General Master
Servicer, each dated as of June 1, 2006, under which such IXIS Sub-Servicers
service the IXIS Mortgage Loans set forth on the schedule attached thereto.
"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 or
Serviced Companion Loan, 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 Fees" means a fee payable to the applicable Master Servicer or
the applicable Special Servicer, as the case may be, to the extent actually
collected from the Mortgagor as provided in the related Mortgage Loan or
Serviced Companion Loan, if applicable, in connection with a late payment made
by such Mortgagor; provided, however, that with respect to the Royal Airport
Office Mortgage Loan, "Late Fees" shall be payable to the applicable Master
Servicer or the applicable Special Servicer, as applicable, and the holder of
the Royal Airport Office B Note as provided in the Royal Airport Office
Co-Lender Agreement.
"Liquidation Expenses" means reasonable and direct expenses incurred
by the applicable Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, appraisal fees, committee or referee fees, property
manager fees, and, if applicable, brokerage commissions and conveyance taxes for
such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to
enforcement and 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 Special Servicer, subject to Section 4.4 and
Section 4.6(d) hereof, as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.00% and
(y) the Liquidation Proceeds received in connection with full or partial
liquidation of a Specially Serviced Mortgage Loan or related REO Property and
any Condemnation Proceeds or Insurance Proceeds received by the Trust; provided,
however, that (A) 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 such Seller and due to a Special Servicer if
repurchased after the date that is 90 days (or 180 days, if the related Seller
is diligently attempting to cure or correct the related Material Document Defect
or Material Breach, as the case may be in accordance with the terms and
conditions of Section 2.3(a) hereof) or more after the applicable Seller
receives notice of the breach or defect causing the repurchase; (B) in the case
of a repurchase of a Mortgage Loan by the holder of a related B note (other than
the Royal Airport Office B Note) or a mezzanine lender, such fee will only be
due to a Special Servicer if repurchased 60 days after a Master Servicer,
Special Servicer or Trustee receives notice of the default causing the
repurchase and (C) in the case of a final disposition of the Royal Airport
Office Mortgage Loan consisting of a purchase by the holder of the Royal Airport
Office B Note, such fee will only be payable if the Royal Airport Office
Mortgage Loan is purchased more than 90 days after the later of (x) the transfer
of the Royal Airport Office Mortgage Loan to the applicable Special Servicer and
(y) the holder of the Royal Airport Office B Note's receipt of written notice
from the applicable Special Servicer that such transfer has taken place.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan, Serviced Companion Loan or related REO Property
(other than pursuant to Section 2.3), the proceeds of such sale or liquidation
net of Liquidation Expenses (to the extent not otherwise paid pursuant to
Section 4.6(c)) and (ii) with respect to the repurchase of a Mortgage Loan or an
REO Mortgage Loan pursuant to Section 2.3, the Purchase Price of such Mortgage
Loan or REO Mortgage Loan (or such allocable portion) at the time of such
repurchase. With respect to the Mortgaged Property securing a Serviced Loan
Group, only the portion of such amounts payable to the holder of the Michigan
Plaza Pari Passu Loan or Royal Airport Office Mortgage Loan, as applicable,
shall be included in Liquidation Proceeds.
"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 of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses, but not including Special Servicing Fees)
incurred in connection with such Mortgage Loan that are payable or reimbursable
to any Person, other than amounts previously treated as Expense Losses or
included in the definition of Liquidation Expenses minus the sum of (i) REO
Income allocated as recoveries of principal or interest on the related Mortgage
Loan, and (ii) with respect to any Mortgage Loan, Liquidation Proceeds, Late
Collections and all other amounts received from the related Mortgagor and
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred (and, with respect to the Michigan Plaza Pari Passu Loan or
Royal Airport Office Mortgage Loan, which are not required under the related
Co-Lender Agreement to be paid or reimbursable to the holder of the related
Serviced Companion Loan). REO Income and Liquidation Proceeds shall be applied
in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case
may be.
"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 Principal Distribution Amount" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"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-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 Appraised 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 a Serviced Loan Group, the
allocable portion thereof.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or a Primary Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means: (a) with respect to any Mortgage Loan
(other than an NCB, FSB Loan or NCCB Loan), the Serviced Companion Loans, any
REO Property acquired by the Trust with respect to a Mortgage Loan (other than
an NCB, FSB Loan or NCCB Loan) and any matters relating to the foregoing, the
General Master Servicer; and (b) with respect to any NCB, FSB Loan and NCCB
Loan, any REO Property acquired by the Trust with respect to an NCB, FSB Loan or
NCCB Loan and any matters relating to the foregoing, the NCB Master Servicer.
"Master Servicer Remittance Date" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan and the Serviced Companion Loans, 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 or Serviced Companion Loan, as applicable, for such
month) multiplied by the Scheduled Principal Balance of such Mortgage Loan or
Serviced Companion Loan, as applicable, 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). For the avoidance of doubt, Master
Servicing Fees are in addition to Primary Servicing Fees.
"Master Servicing Fee Rate" means (i) with respect to each Mortgage
Loan, the rate per annum specified as such on the Mortgage Loan Schedule and
(ii) with respect to each Serviced Companion Loan, 0.01% (1 basis point).
"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 or Serviced
Companion Loan 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 (or Serviced Companion
Loan, as applicable) occurring prior to such date of determination, but without
giving effect to (i) any acceleration of the principal of such Mortgage Loan (or
the Michigan Plaza Companion Loan, as applicable) or (ii) any grace period
permitted by such Mortgage Loan (or Serviced Companion Loan, as applicable).
"MERS" means Mortgage Electronic Registration Systems, Inc.
"Michigan Plaza Co-Lender Agreement" means the co-lender agreement
by and between the holder of the Michigan Plaza Pari Passu Loan and the holder
of the Michigan Plaza Companion 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.
"Michigan Plaza Companion Loan" means the mortgage loan which is
secured on a pari passu basis with the Michigan Plaza Pari Passu Loan by the
related Mortgaged Property. The Michigan Plaza Companion Loan is not an asset of
the Trust.
"Michigan Plaza Loan Group" means, collectively, the Michigan Plaza
Pari Passu Loan and the Michigan Plaza Companion Loan.
"Michigan Plaza Pari Passu Loan" means the Mortgage Loan which is
designated as Mortgage Loan No. 1 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the Michigan Plaza Companion Loan by the
related Mortgaged Property.
"MM" has the meaning assigned in the Preliminary Statement hereto.
"MM Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"Modification Fee" means a fee, if any, collected in connection with
the modification of a Mortgage Loan or Serviced Companion Loan.
"Modification Loss" means, with respect to each Mortgage Loan (or
Serviced Companion 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 applicable 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 (or Serviced Companion Loan, as
applicable) during the preceding Collection Period.
"Money Term" means, with respect to any Mortgage Loan or Serviced
Companion Loan, the Maturity Date, Mortgage Rate, Principal Balance,
amortization term or payment frequency thereof, or the amount of the scheduled
payment thereof, or any provision thereof requiring the payment of a prepayment
premium, yield maintenance payment or percentage premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"Monthly Certificateholders Report" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the date of such Distribution Date and of the Record
Date, Interest Accrual Period and Determination Date for such Distribution Date;
(ii) the Available Distribution Amount for the Distribution Date, and any other
cash flows received on the Mortgage Loans and applied to pay fees and expenses
(including the components of the Available Distribution Amount or such other
cash flows); (iii) the aggregate amount of servicing fees, Special Servicing
Fees, other special servicing compensation and Trustee Fees paid to the Master
Servicers, the Special Servicers, the Trustee and the Paying Agent with respect
to the Mortgage Pool and with respect to each Loan Group; (iv) the amount of
other fees and expenses accrued and paid from the Trust Fund, including without
limitation Advance reimbursement and interest on Advances, and specifying the
purpose of such fees or expenses and the party receiving payment of those
amounts, if applicable; (v) the amount, if any, of such distributions to the
holders of each Class of Principal Balance Certificates applied to reduce the
respective Certificate Balances thereof; (vi) the amount of such distribution to
holders of each Class of Certificates allocable to (A) interest accrued
(including Excess Interest) at the respective Pass-Through Rates, less any Net
Aggregate Prepayment Interest Shortfalls and (B) Prepayment Premiums or Yield
Maintenance Charges; (vii) the amount of any shortfall in principal
distributions and any shortfall in interest distributions to each applicable
Class of Certificates; (viii) the amount of excess cash flow, if any distributed
to the holder of the Residual Certificates; (ix) the Weighted Average REMIC I
Net Mortgage Rate (and interest rates by distributional groups or ranges) of the
Mortgage Loans as of the related Determination Date; (x) 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, with respect to the Mortgage Pool and with respect to each
Loan Group; (xi) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, with respect to the Mortgage Pool and with respect to each Loan
Group (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; (xii) the number and
related Principal Balances of any Mortgage Loans modified, extended or waived on
a loan-by-loan basis since the previous Determination Date (including a
description of any modifications, extensions or waivers to mortgage loan terms,
fees, penalties or payments during the distribution period as provided to the
Paying Agent); (xiii) 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; (xiv) 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 applicable
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by each Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(xv) 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; (xvi) the aggregate amount of Principal
Prepayments made during the related Collection Period with respect to the
Mortgage Pool and with respect to each Loan Group; (xvii) the Pass-Through Rate
applicable to each Class of Certificates for such Distribution Date; (xviii) the
amount of Unpaid Interest, Realized Losses or Expense Losses, if any, incurred
with respect to the Mortgage Loans, including a breakout by type of such
Realized Losses or Expense Losses, with respect to the Mortgage Pool and with
respect to each Loan Group; (xix) the aggregate amount of Servicing Advances and
P&I Advances outstanding separately stated that have been made by the applicable
Master Servicer, the applicable Special Servicer and the Trustee, with respect
to the Mortgage Pool and with respect to each Loan Group; (xx) 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, with respect to the Mortgage Pool and with respect to each
Loan Group; (xxi) any Material Breaches of Mortgage Loan representations and
warranties of which the Trustee, any Master Servicer or any Special Servicer has
received written notice; (xxii) material breaches of any covenants under this
Agreement of which the Trustee, any Master Servicer or any Special Servicer has
received written notice; (xxiii) if applicable to any transaction, information
regarding any tests used for determining early amortization, liquidation or
other performance trigger and whether the trigger was met; and (xxiv) as
determined and/or approved by the Depositor, any other information necessary to
satisfy the requirements of Item 1121(a) of Regulation AB that can, in the
Paying Agent's reasonable judgment, be included on the Monthly
Certificateholders Report without undue difficulty. In the case of information
furnished pursuant to subclauses (v), (vi) and (xv) 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.
"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 2006-IQ11, without recourse,
representation or warranty" 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 90th day following the
Closing Date because of a delay caused by the public recording office
where such original Mortgage has been delivered for recordation or because
such original Mortgage has been lost, 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, if applicable, 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 90th day following the Closing Date
with evidence of recordation thereon or have been lost after recordation,
true 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 2006-IQ11"; provided that, if the
related Mortgage has been recorded in the name of MERS or its designee, no
related Assignment of Mortgage in favor of the Trustee will be required to
be recorded or delivered and instead, the applicable Seller pursuant to
the applicable Mortgage Loan Purchase Agreement shall take all actions as
are necessary to cause the Trustee to be shown as, and shall deliver
evidence of any such transfers to the Master Servicers and the Special
Servicers, 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;
(v) originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage
certified by the applicable Seller, or in the case of an original blanket
intervening assignment of Mortgage retained by the applicable Seller, a
copy thereof certified by the applicable Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or prior
to the 90th 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 certified by a title insurance company or escrow
company to be a true copy thereof; provided that or, if such Assignment of
Leases has not been returned on or prior to the 90th day following the
Closing Date because of a delay caused by the applicable public recording
office where such Assignment of Leases has been delivered for recordation
or because such original Assignment of Leases has been lost, the Seller
shall deliver or cause to be delivered to the Trustee a true and correct
copy of such Assignment of Leases submitted for recording, together with,
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Assignment of
Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is
recorded that such copy is a true and complete copy of the original
recorded Assignment of Leases, in each case together with an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "LaSalle Bank National Association, as
Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11," which assignment may be
effected in the related Assignment of Mortgage; provided that, if the
related Assignment of Leases has been recorded in the name of MERS or its
designee, no Assignment of Leases or assignment of Assignment of Leases in
favor of the Trustee will be required to be recorded or delivered and
instead, the applicable Seller pursuant to the applicable Mortgage Loan
Purchase Agreement shall take all actions as are necessary to cause the
Trustee to be shown as, and shall deliver evidence of any such transfers
to the Master Servicers and the Special Servicers, 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 records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(vii) the original or a copy 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, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by
the title company or its authorized agent with one of the foregoing
attached thereto and, in each case, with the original Title Insurance
Policy to follow within 180 days of the Closing Date, or a copy of any of
the foregoing 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 the original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B)
UCC-2 or UCC-3 financing statements assigning such UCC financing
statements to the Trustee executed and delivered in connection with the
Mortgage Loan; provided that, if the related Mortgage Loan has been
recorded in the name of MERS or its designee, no UCC, UCC-2 or UCC-3
financing statement in favor of the Trustee will be required to be
recorded or delivered and instead, the applicable Seller pursuant to the
applicable Mortgage Loan Purchase Agreement shall take all actions as are
necessary to cause the Trustee, on behalf of the Certificateholders, to be
shown as, and shall deliver evidence of any such transfers to the Master
Servicers and the Special Servicers, and the Trustee shall take all
actions necessary to confirm that it is shown as, the secured party on the
related UCC financing statements on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease
and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan (including,
without limitation, the Co-Lender Agreements and a copy of the mortgage
note evidencing the related Serviced Companion Loan);
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned and
delivered to the Trustee on behalf of the Trust, and applied, drawn,
reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, this Agreement and the applicable Primary
Servicing Agreement or, (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be held by the
applicable Primary Servicer (or the applicable Master Servicer) on behalf
of the Trustee and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, this
Agreement and the applicable Primary Servicing Agreement (it being
understood that each Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of
credit and the proceeds thereof belong to the Trust, and to use reasonable
efforts to obtain within 30 days (but in any event to obtain within 90
days) following the Closing Date, an acknowledgement thereof by the bank
(with a copy of such acknowledgement to be sent to the Trustee) and (c) to
indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of the Seller to assign the letter of
credit hereunder). In the case of clause (B) above, each Primary Servicer
(and the General Master Servicer) acknowledges that any letter of credit
held by it shall be held in its capacity as agent of the Trust, and if a
Primary Servicer or a Master Servicer, as applicable, sells its rights to
service the applicable Mortgage Loan, the applicable Primary Servicer or a
Master Servicer, as applicable, will assign the applicable letter of
credit to the Trust or at the direction of the General Special Servicer to
such party as such Special Servicer may instruct, in each case, at the
expense of the Primary Servicer or a Master Servicer, as applicable. The
Primary Servicer (or the applicable Master Servicer) shall indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans
with a Cut-Off Date Principal Balance equal to or greater than
$20,000,000;
(xv) the original of any Environmental Insurance Policy or (i) if
the original is held by the related borrower, a copy thereof, or (ii) the
binder for such Environmental Insurance Policy;
(xvi) a copy of any affidavit and indemnification agreement in favor
of the lender; and
(xvii) with respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents.
"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, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3. Mortgage Loan
shall also include any Defeasance Loan, any REO Mortgage Loan and for the
avoidance of doubt, the Michigan Plaza Pari Passu Loan, the Royal Airport Office
Mortgage Loan (but not either related Serviced Companion Loan), unless the
context requires otherwise.
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV, Mortgage Loan Purchase
Agreement V, Mortgage Loan Purchase Agreement VI and Mortgage Loan Purchase
Agreement VII, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage
Loan Purchase Agreement between MSMC and the Depositor dated as of June 1, 2006
with respect to 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 IXIS and the Depositor dated as of June 1, 2006
with respect to the IXIS 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 MM and the Depositor dated as of June 1, 2006
with respect to the MM 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 NCB, FSB and the Depositor dated as of June 1,
2006 with respect to the NCB, FSB Loans, a form of which is attached hereto as
Exhibit K-4.
"Mortgage Loan Purchase Agreement V" means that certain Mortgage
Loan Purchase Agreement between UCMFI and the Depositor dated as of June 1, 2006
with respect to the UCMFI Loans, a form of which is attached hereto as Exhibit
K-5.
"Mortgage Loan Purchase Agreement VI" means that certain Mortgage
Loan Purchase Agreement between SunTrust and the Depositor dated as of June 1,
2006 with respect to the SunTrust Loans, a form of which is attached hereto as
Exhibit K-6.
"Mortgage Loan Purchase Agreement VII" means that certain Mortgage
Loan Purchase Agreement between NCCB and the Depositor dated as of June 1, 2006
with respect to the NCCB Loan, a form of which is attached hereto as Exhibit
K-7.
"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 IXIS Loan, the
schedule attached hereto as Schedule III, which identifies each MM Loan, the
schedule attached hereto as Schedule IV, which identifies each NCB, FSB Loan and
NCCB Loan, the schedule attached hereto as Schedule V, which identifies each
UCMFI Loan and the schedule attached hereto as Schedule VI, 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 Pool" means all of the Mortgage Loans and any successor
REO Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan or Serviced
Companion Loan, the per annum rate at which interest accrues on such Mortgage
Loan or Serviced Companion Loan, as applicable.
"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 a Serviced Loan Group, the related
Serviced Companion 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 assigned 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.
"NCB, FSB Subordinate Debt Conditions" means, with respect to a
Mortgagor encumbering a Mortgaged Property relating to a Co-op Mortgage Loan
with a subordinate mortgage, the following conditions: (i) each of the loans, or
the sole loan, to be secured by each such subordinate mortgage is made by NCB,
FSB or any Affiliate thereof (ii) each such subordinate mortgage is expressly
subject and subordinate to the lien of the Mortgage encumbering the Mortgaged
Property in question, (iii) each such subordinate mortgage is expressly made in
compliance with the underwriting standards which NCB, FSB customarily employs in
connection with making subordinate mortgages for its own mortgage loan
portfolio, (iv) as of the date of the closing of the subordinate mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does not exceed 40%,
(v) NCB, FSB or any Affiliate thereof that originates the subordinate mortgage
loan, executes and delivers to the Trustee for inclusion in the Mortgage File a
subordination agreement with respect to such subordinate mortgage in
substantially the form of Exhibit T hereto (provided that the Trustee shall have
no responsibility for determining the sufficiency or validity thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan, the stated
maturity date of the subordinate mortgage loan shall be no earlier than the
maturity date of the related Co-op Mortgage Loan, (vii) the subordinate mortgage
loan shall have interest payable on a current basis, with no deferral, (viii)
the subordinate mortgage loan is made principally for the purpose of funding
capital expenditures, major repairs or reserves at or with respect to the
Mortgaged Property in question and (ix) the aggregate amount of subordinate debt
encumbering the Mortgaged Property in question does not exceed $7,500,000. For
purposes of this definition, and notwithstanding anything herein to the
contrary: "Mortgage Debt" shall mean the sum of (x) the aggregate outstanding
principal balance of all loans secured by one or more mortgages then encumbering
the Mortgaged Property in question (including the related Co-op Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date, and the denominator of which is the Appraised
Value of the related Mortgaged Property; and "Appraised Value" shall be based on
an MAI appraisal of the applicable Mortgaged Property made, in conformance with
NCB, FSB's customary underwriting requirements, not more than one year prior to
the origination date of the related Co-op Mortgage Loan and reviewed by the NCB
Master Servicer.
"NCB Master Servicer" means NCB, FSB and its permitted successors or
assigns.
"NCB Master Servicer's Website" has the meaning set forth in Section
8.14 hereof.
"NCB, FSB Trust Assets" means the NCB, FSB Loans, the NCCB Loan, any
REO Properties acquired by the Trust with respect to the NCB, FSB Loans or the
NCCB Loan and any and all other related assets of the Trust.
"NCB, FSB" has the meaning assigned in the Preliminary Statement
hereto.
"NCB, FSB Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"NCCB" has the meaning assigned in the Preliminary Statement hereto.
"NCCB Loan" means the Mortgage Loan sold to the Depositor pursuant
to the Mortgage Loan Purchase Agreement VII and shown on Schedule IV hereto.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and each Master Servicer, the excess of all Prepayment
Interest Shortfalls incurred in respect of all (or, where specified, a portion)
of the Mortgage Loans serviced by such Master Servicer (including Specially
Serviced Mortgage Loans) during any Collection Period over the sum of (A) the
Compensating Interest to be paid by such Master Servicer (or any Primary
Servicer or Sub-Servicer, if applicable according to the related Primary
Servicing Agreement or Sub-Servicing Agreement) on such Distribution Date and
(B) the aggregate Prepayment Interest Excesses during such Collection Period for
such Master Servicer's Mortgage Loans (including Specially Serviced Mortgage
Loans). Prepayment Interest Shortfalls and Prepayment Interest Excesses will be
separately accounted for by each of the Master Servicers.
"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.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Non-Investment Grade Certificates" means each Class of Certificates
other than a Residual Certificate or a Class EI Certificate that, at the time of
determination, is not rated in one of the four highest generic rating categories
by at least Fitch or S&P.
"Non-Registered Certificate" means unless and until registered under
the Securities Act, any Class X, Class X-Y, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class EI or
Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust, and
(ii) will not cause the Class EI Grantor Trust to fail to qualify as a grantor
trust.
"Noneconomic Residual Interest" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) or Unliquidated Advance (not
including interest thereon) previously made (or, in the case of an Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by a Master
Servicer, a Special Servicer or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to such Master Servicer
and such Special Servicer, in accordance with the Servicing Standard, will not
be or, in the case of a current delinquency, would not be, ultimately
recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or Purchase Proceeds (or from any other collections) with respect to
the related Mortgage Loan or REO Property (or, in the case of Servicing Advances
(but not P&I Advances), the related Serviced Companion Loan), as evidenced by an
Officer's Certificate delivered pursuant to Section 4.4. With respect to each
Mortgage Loan that is cross-collateralized by Mortgaged Properties securing
other Mortgage Loans, all of such Mortgaged Properties and other security must
be considered in connection with any determination of whether an Advance or
Unliquidated Advance is a Nonrecoverable Advance. Such Officer's Certificate
shall be delivered to the Trustee (upon which the Trustee may conclusively rely)
or to the Depositor (if the Trustee is delivering such Officer's Certificate)
and (in either case) to the applicable 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 nonrecoverability of any Advance shall be
conclusive and binding on the Certificateholders (and, in the case of a Serviced
Companion Loan, the holder of such Serviced Companion Loan) and may, in all
cases, be relied on by the Trustee; provided, however, that the applicable
Special Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable Advance and shall deliver to the Master Servicer and the
Trustee notice of such determination. Any such determination shall be conclusive
and binding on the applicable Master Servicer and the Trustee; provided,
however, the applicable Special Servicer shall have no such right to make an
affirmative determination that any P&I Advance is or would be recoverable and,
in the absence of a determination by the applicable Special Servicer that such
Advance is or would be a Nonrecoverable Advance, the decision that a P&I Advance
is recoverable shall remain with the applicable Master Servicer or Trustee, as
applicable. Absent bad faith, such determination by the applicable Special
Servicer shall be conclusive and binding on the Certificateholders (and, in the
case of a Serviced Companion Loan, the holder of such Serviced Companion Loan),
the Master Servicers and the Trustee. None of the Master Servicers, the Special
Servicers or the Trustee will be obligated to make any Advance that, in its
judgment in accordance with the Servicing Standard, would not ultimately be
recoverable out of collections on the related Mortgage Loan. 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
applicable 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 applicable Special Servicer (among other things), future
expenses, (iv) to estimate and consider, consistent with the Servicing Standard
in the case of the applicable Master Servicer or the applicable Special Servicer
(among other things), the timing of recovery to such party and (v) to consider
the amount of any deferred Advances outstanding. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the applicable Master
Servicer or the applicable 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 applicable Special Servicer, obtain from the applicable
Special Servicer any analysis, appraisals or other information in the possession
of such Special Servicer for such purposes.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-Y Certificates as a Class, the Class
X-Y Notional Amount as of such date of determination; (iv) with respect to any
Class X-Y Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-Y Notional Amount; (v) with respect to any Group X-Y
REMIC I Regular Interest, the Principal Balance of the related Specially
Designated Co-op Mortgage Loan (or any successor REO Mortgage Loan), reduced by
any Advances of principal made with respect to such Specially Designated Co-op
Mortgage Loan and losses thereon previously allocated to Certificateholders; and
(vi) with respect to the REMIC II Regular Interest X-Y, the Class X-Y Notional
Amount, which is equal to the aggregate of the Notional Amounts with respect to
all Group X-Y REMIC I Regular Interests.
"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 applicable Master Servicer(s) and the applicable Special
Servicer(s), 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, 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; Senior Vice President, Second Vice
President, Vice President or Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Secretary or Assistant Secretary or any other
authorized signatory 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.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed to
the applicable Master Servicer (and/or any Primary Servicer acting on behalf of
such Master Servicer), the applicable Special Servicer, or the Trustee and the
Paying Agent, as applicable, reasonably acceptable in form and substance to such
Master Servicer (and/or any Primary Servicer acting on behalf of such Master
Servicer), such Special Servicer, or the Trustee and the Paying Agent, as
applicable, and who is not in-house counsel to the party required to deliver
such opinion but who, in the good faith judgment of such Master Servicer (and/or
any Primary Servicer acting on behalf of such Master Servicer), the applicable
Special Servicer, or the Trustee and the Paying Agent, as applicable, 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 Grantor Trust Provisions of the
Class EI Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section 9.36(a).
"Option Purchase Price" shall have the meaning specified in Section
9.36(b).
"Other Master Servicer" means the applicable "master servicer" under
an Other Pooling and Servicing Agreement.
"Other Operating Adviser" means the applicable "operating adviser"
under an Other Pooling and Servicing Agreement.
"Other Pooling and Servicing Agreement" means a pooling and
servicing agreement relating to a Serviced Companion Loan that creates a
commercial mortgage securitization trust, as applicable.
"Other Securitization" has the meaning set forth in Section 9.4(d)
hereof.
"Other Special Servicer" means the applicable "special servicer"
under an Other Pooling and Servicing Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing Fees,
Primary Servicing Fees and other servicing fees payable from such Scheduled
Payment), other than a Balloon Payment or any default interest, 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 Balloon Mortgage
Loan (including any REO Mortgage Loan which provided for a Balloon Payment) as
to which a Balloon Payment was due or deemed 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 (net of the related Master Servicing Fee, Excess Servicing
Fees, Primary Servicing Fees and other master or primary servicing fees payable
from such 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 REO Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the applicable
Master Servicer by the applicable 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 Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or REO Mortgage Loan
which has been modified shall be calculated based on its terms as modified and
provided, further, that the interest portion amount 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 with respect to
interest required to be advanced without giving effect to this proviso and (ii)
a fraction, the numerator of which is the Scheduled 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 the
Michigan Plaza Pari Passu Loan, the pro rata portion of such Appraisal Reduction
allocable to the Michigan Plaza Pari Passu Loan under the Michigan Plaza
Co-Lender Agreement and, in the case of the Royal Airport Office Mortgage Loan,
after such Appraisal Reduction has been allocated to the holder of the Royal
Airport Office B Note) and the denominator of which is the Scheduled Principal
Balance of such Mortgage Loan as of such Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance computed
for any Distribution Date.
"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, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter,
the Pass-Through Rates for (i)(A) the Group PB REMIC I Regular Interests shall
equal their respective REMIC I Net Mortgage Rates and (B) the Group X-Y REMIC I
Regular Interests, their respective Class X-Y Strip Rates on the related
Mortgage Loan for such Distribution Date, (ii)(A) the REMIC II Regular Interests
(other than REMIC II Regular Interest X-Y) shall equal the Weighted Average
REMIC I Net Mortgage Rate and (B) the REMIC II Regular Interest X-Y shall equal
the Weighted Average Class X-Y Strip Rate for such Distribution Date, (iii) the
Class A-1 Certificates shall equal the fixed rate corresponding to such Class
set forth in the Preliminary Statement hereto, (iv) the Class A-1A Certificates
shall equal a per annum rate equal to the Weighted Average REMIC I Net Mortgage
Rate less 0.014% for such Distribution Date, (v) the Class A-2 Certificates
shall equal the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto, subject to a cap equal to the Weighted Average
REMIC I Net Mortgage Rate, (vi) the Class A-3 Certificates shall equal a per
annum rate equal to the Weighted Average REMIC I Net Mortgage Rate less 0.040%
for such Distribution Date; (vii) the Class A-4 Certificates shall equal a per
annum rate equal to the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date minus 0.004%; (viii) the Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates shall equal a per
annum rate equal to the Weighted Average REMIC I Net Mortgage Rate and (ix) the
Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
shall equal the lesser of (A) 5.534% and (B) the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (x) the Class X Certificates shall
equal the per annum rate equal to the weighted average of Class X Strip Rates
for the 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 (xi) the Class X-Y Certificates shall
equal the Weighted Average Class X-Y Strip Rate.
"Paying Agent" means LaSalle Bank National Association, and any
successor or assign, as provided herein.
"Paying Agent's Website" has the meaning set forth in Section 5.4(a)
hereof.
"PCAOB" means the Public Company Accounting Oversight Board.
"Penalty Charges" means the default interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Percentage Interest" means, with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"Performing Party" has the meaning set forth in Section 13.12.
"Permitted Mezzanine Loan Holder": With respect to any mezzanine
loan, the related Seller or any other holder of a mezzanine loan with respect to
which each Rating Agency has confirmed in writing to the applicable Special
Servicer and the Trustee that the holding of such mezzanine loan by such Person
would not cause a qualification, downgrade or withdrawal of any of such Rating
Agency's then-current ratings on the Certificates.
"Permitted Transferee" means any Transferee other than (i) a
Disqualified Organization, (ii) a United States Tax Person with respect to whom
income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Tax Person or (iii) a United
States Tax Person treated as a partnership for federal income tax purposes, any
partner of which, directly or indirectly (except through a U.S. corporation), is
not a United States Tax Person.
"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
successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"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
of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is
made on or after the Due Date for such Mortgage Loan through and including the
last day of the Collection Period (or, with respect to those Mortgage Loans
listed on Schedule XIII, through and including the first Business Day prior to
the Master Servicer Remittance Date), the amount of interest that accrues on the
amount of such Principal Prepayment or Balloon Payment from such Due Date to the
date such payment was made, plus (if made) any payment by the related Mortgagor
of interest that would have accrued to the next succeeding Due Date (net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, the Special Servicing Fee and the Trustee Fee in each case, to
the extent payable out of such collection of interest), 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 any payment of an unscheduled Balloon Payment) made during any
Collection Period prior to the Due Date for such Mortgage Loan in such
Collection Period (including any shortfall resulting from a payment during the
grace period relating to such Due Date). The amount of any Prepayment Interest
Shortfall shall equal the excess of (A) the aggregate amount of interest which
would have accrued at the REMIC I Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, the
Special Servicing Fee and the Trustee Fee), plus, with respect to each Specially
Designated Co-op Mortgage Loan, the related Class X-Y Strip Rate over (B) the
aggregate interest that did so accrue at the REMIC I Net Mortgage Rate plus,
with respect to each Specially Designated Co-op Mortgage Loan, the related Class
X-Y Strip Rate, through the date such payment was made.
"Prepayment Premium" means, with respect to any Mortgage Loan or
Serviced Companion Loan for any Distribution Date, the prepayment premiums or
percentage premiums, if any, received during a related Collection Period in
connection with Principal Prepayments on such Mortgage Loan or Serviced
Companion Loan, as applicable.
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"Primary Servicers" means any of Union Central Mortgage Funding,
Inc., Babson Capital Management LLC, SunTrust Bank and each of their respective
permitted successors and assigns.
"Primary Servicing Agreement" means, with respect to each Primary
Servicer, the agreement between such Primary Servicer and the General Master
Servicer, dated as of June 1, 2006, under which such Primary Servicer services
the Mortgage Loans set forth on the schedule attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to each
Mortgage Loan for which a Primary Servicing Fee is payable pursuant to this
Agreement, the Primary Servicing Fee Rate multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and
payable only from collections on such Mortgage Loan.
"Primary Servicing Fee Rate" means, the rate per annum at which the
monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the
applicable Master Servicer, as applicable) accrues, which rate is the per annum
rate specified on the Mortgage Loan Schedule, as more specifically described, in
the case of the Primary Servicers, in the applicable Primary Servicing Agreement
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month).
"Principal Balance" means, with respect to any Mortgage Loan,
Serviced Companion Loan or any REO Mortgage Loan, for purposes of performing
calculations with respect to any Distribution Date, the principal balance of
such Mortgage Loan (or Serviced Companion Loan, as applicable) 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 prior to the Cut-Off Date
(assuming, for any Mortgage Loan (or Serviced Companion Loan, as applicable)
with a Cut-Off Date in June 2006 that is not June 1, 2006, that principal and
interest payments for such month were paid on June 1, 2006), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal on such Mortgage Loan (or Serviced Companion Loan, as applicable) 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 Serviced Companion Loan, as applicable) or
related REO Mortgage Loan, in each case, during any related and preceding
Collection Period.
"Principal Balance Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates.
"Principal Distribution Amount" means, on any Distribution Date, the
amount equal to the excess, if any, of (I) the sum of:
(A) the aggregate (without duplication) of the following amounts
received with respect to the Mortgage Loans: (i) the principal portion of
all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans 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) 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 that were identified and applied by the Master Servicer as
recoveries of principal thereof;
(B) the aggregate amount of any collections received on or in
respect of the Mortgage Loans that 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 identified and applied
by the applicable Master Servicer as recoveries of principal and 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 and any 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), and which are applied pursuant to Section 6.6(c)(i); 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 applicable Special Servicer and the Trustee from principal
collections on the Mortgage Loans pursuant to subsection (iii) of Section
5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the Master Servicer, the applicable
Special Servicer and the Trustee during the related Collection Period from
principal collections on 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 (or Serviced Companion Loan) which is
received or recovered in advance of its scheduled Due Date and applied to reduce
the Principal Balance of the Mortgage Loan (or Serviced Companion Loan, as
applicable) 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 May 24, 2006, pursuant to which the Class X, Class X-Y, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O and Class P Certificates will be offered for sale.
"Prohibited Party": A party that is a proposed Servicing Function
Participant that a Master Servicer, a Special Servicer or the Trustee, as
applicable, seeks to retain as a Servicing Function Participant and as to which
the Master Servicers, the Special Servicers or the Trustee, as applicable, has
actual knowledge that such proposed party on any prior date failed to comply
with its Exchange Act or Regulation AB obligations with respect to the Subject
Securitization Transaction or any other commercial mortgage securitization. In
addition, a Prohibited Party shall be any Person identified in writing
(delivered prior to the date of retention) by the Depositor to the Master
Servicers, the Special Servicers or the Trustee, as applicable, that seeks to
retain such Person as a Person which the Depositor has knowledge that such party
on any prior date failed to comply with its Exchange Act or Regulation AB
obligations with respect to the Subject Securitization Transaction or any other
commercial mortgage securitization.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market rate vacancy assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the applicable Seller of a Mortgage Loan
sold by such Seller, (ii) the determination of fair value of an REO Mortgage
Loan with respect to a liquidation by the Special Servicer pursuant to Section
9.15 or (iii) the determination of fair value of a Mortgage Loan (or Serviced
Loan Group, as applicable) in connection with a purchase by the Option Holder
pursuant to Section 9.36 under the circumstances described therein, a price
equal to the sum of (A) 100% of the unpaid Principal Balance of such Mortgage
Loan (or Serviced Loan Group, as applicable) (or, in each case, deemed Principal
Balance, in the case of an REO Mortgage Loan), plus (B) accrued but unpaid
interest thereon calculated at the Mortgage Rate to and 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 (or Serviced Loan
Group, as applicable) or the related REO Property (including any Servicing
Advances and Advance Interest (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 (or Serviced Loan Group, as applicable)) and all unpaid Special
Servicing Fees and Liquidation Fees paid or payable with respect to the Mortgage
Loan (or Serviced Loan Group, as applicable) that are reimbursable or payable to
the applicable Master Servicer, the applicable Special Servicer, the Paying
Agent or the Trustee, plus (D) if such Mortgage Loan or REO Mortgage Loan is
being repurchased or substituted for by a Seller pursuant to the related
Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be
incurred by the Primary Servicer, the applicable Master Servicer, the applicable
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 a Seller pursuant to Section 2.3, (ii) the
purchase by the Option Holder of a Mortgage Loan pursuant to Section 9.36; (iii)
the purchase of the Mortgage Loans and REO Properties by the Depositor, the
applicable Master Servicer, the applicable Special Servicer or the holders of
the Class R-I Certificates pursuant to Section 10.1(b); (iv) the purchase of the
Royal Airport Office Mortgage Loan by the holder of the Royal Airport Office B
Note or (v) if applicable, the purchase of a Mortgage Loan by a holder of a
mezzanine loan under the related mezzanine intercreditor agreement.
"Qualified Bidder" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan or
Serviced Companion Loan, an insurance company duly qualified as such under the
laws of the state in which the related Mortgaged Property is located, duly
authorized and licensed in such state to transact the applicable insurance
business and to write the insurance, but in no event rated lower than "A" by
Fitch, or if not so rated by Fitch, then Fitch has issued a Rating Agency
Confirmation, and "A" by S&P, or if not so 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 S&P if rated by S&P, or if not
so rated by S&P, then A:IX by A. M. Best or S&P has issued a Rating Agency
Confirmation and "A" by Fitch (or if such company is not rated by Fitch, is
rated at least A:IX by A.M. Best's Key Rating Guide) or (iii) in either case, a
company not satisfying clause (i) or (ii) but with respect to which Rating
Agency Confirmation is obtained from Fitch and S&P. "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 the applicable Certificate
Account, and shall be treated as a Principal Prepayment hereunder; (ii) is
accruing interest at a rate of interest at least equal to that of the Deleted
Mortgage Loan; (iii) has a remaining term to stated maturity not greater than,
and not more than two years less than, that of the Deleted Mortgage Loan; (iv)
has (A) an original Loan-to-Value Ratio not higher than the lesser of (x) the
current Loan-to-Value Ratio of the Deleted Mortgage Loan and (y) 75.0% and (B)
has a current Debt Service Coverage Ratio equal to the greater of (x) the
current Debt Service Coverage Ratio of the Deleted Mortgage Loan and (y) 1.25x;
(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 the
related Mortgage File and such Phase I Environmental Report does not, in the
good faith reasonable judgment of the applicable Special Servicer, exercised in
a manner 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,
exercised in a manner consistent with the Servicing Standard, raise material
issues that have not been adequately addressed; (viii) is secured by a
residential cooperative property if the Mortgage Loan substituted for a Deleted
Mortgage Loan is a Co-op Mortgage Loan; and (ix) 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 Final Rated
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
(i) above and the remaining term to stated maturity referred to in clause (ii)
above shall be determined on a weighted average basis; provided, however, that
no individual interest rate, minus the Administrative Cost Rate, shall be lower
than the highest Pass-Through Rate of any Class of Principal Balance
Certificates then outstanding having a fixed 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 Master Servicers, the Special Servicers, the Trustee and
the Operating Adviser promptly, and in any event within five Business Days
following the Paying Agent's receipt of such certification.
"Rating Agencies" means Fitch and S&P.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency;
provided that, with respect to any matter affecting a Serviced Companion 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 set forth in the last sentence
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 Losses on a Mortgage Loan are allocated first to the Principal Balance
of, and then to interest on such 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 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, the portion thereof not treated as a Realized Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to a Mortgage Loan that were identified as allocable to principal, such
excess shall be treated as a Realized Interest Loss.
"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, Serviced Companion Loan or REO
Property following the period in which a Final Recovery Determination occurs
plus other amounts defined as "Recoveries" herein.
"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation S" means Regulation S under the 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).
"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 or Serviced Loan Group, as
applicable, 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)
one of the following statements is true with respect to any cost incurred as a
result of the occurrence of the Servicing Transfer Event: (a) the cost has been
reimbursed to the Trust, (b) the Mortgagor's obligation to pay the cost has been
forgiven, (c) the Mortgagor has agreed in writing to reimburse such costs or (d)
the cost represents an amount that has been the subject of an Advance made with
respect to the Mortgage Loan following default, the mortgage loan has been
worked out under terms that do not provide for the repayment of such Advance in
full upon the execution of the workout arrangement but the Mortgagor is
nonetheless obligated under the terms of the workout arrangement to reimburse
such Advance in the future. None of the Michigan Plaza Pari Passu Loan, the
Michigan Plaza Companion Loan, the Royal Airport Office Mortgage Loan or the
Royal Airport Office B Note will constitute a Rehabilitated Mortgage Loan unless
the entire related Serviced Loan Group constitutes a Rehabilitated Mortgage
Loan.
"Release Date" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to the Master
Servicers, the Special Servicers, any Primary Servicer and the Trustee, on
Schedule XVI attached hereto). For clarification purposes, multiple Reporting
Servicers can have responsibility for the same Relevant Servicing Criteria and
some of the Servicing Criteria will not be applicable to certain Reporting
Servicers. With respect to a Servicing Function Participant engaged by the
Trustee, the Master Servicers, the Special Servicers, any Primary Servicer or
any Reporting Sub-Servicer, the term "Relevant Servicing Criteria" may refer to
a portion of the Relevant Servicing Criteria applicable to the Trustee, the
Master Servicers, the Special Servicers, any Primary Servicer or such Reporting
Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
related thereto as shall from time to time be held in the Certificate Accounts,
the Interest Reserve Accounts, the Reserve Account and the Distribution Account
(other than the portion thereof constituting Excess Interest Sub-account or
funds held with respect to REMIC II or REMIC III), the related Insurance
Policies (other than the interest of the holder of a Serviced Companion Loan
therein) and any related REO Properties (other than the interest of the holder
of a Serviced Companion Loan therein), for which a REMIC election has been made
pursuant to Section 12.1(a) hereof. Neither Serviced Companion Loan nor 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 and any REMIC I Regular Interest, a rate per annum equal to the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on
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, with
respect to each Specially Designated Co-op Mortgage Loan, the Class X-Y Strip
Rate.
"REMIC I Regular Interests" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to (i) each Mortgage Loan (other than a Specially Designated Co-op
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
and (ii) with respect to each Specially Designated Co-op Mortgage Loan, one
interest having an initial Certificate Balance equal to the Cut-Off Date
Scheduled Principal Balance of such Specially Designated Co-op Mortgage Loan,
and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such
Specially Designated Co-op Mortgage Loan and one interest having an initial
Notional Amount equal to the Cut-Off Date Scheduled Principal Balance of such
Specially Designated Co-op Mortgage Loan, and which has a Pass-Through Rate
equal to the Class X-Y Strip Rate of such Specially Designated Co-op Mortgage
Loan.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, 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 an initial Certificate Balance as set forth in the Preliminary
Statement, 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 initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest X-Y" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial notional amount equal to the initial Class X-Y
Notional Amount, and which has a Pass-Through Rate equal to the Weighted Average
Class X-Y Strip Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular Interest A-1, REMIC II Regular Interest A-1A, REMIC II Regular Interest
A-2, REMIC II Regular Interest A-3, REMIC II Regular Interest A-4, REMIC II
Regular Interest A-M, REMIC II Regular Interest A-J, REMIC II Regular Interest
B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K,
REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N, REMIC II Regular Interest O, REMIC II Regular Interest P and REMIC
II Regular Interest X-Y.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC III Certificates" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class X,
Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Rent Loss Policy" means a policy of insurance generally insuring
against loss of income or rent resulting from hazards or acts of God.
"Rents from Real Property" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO Income" means, with respect to any REO Property (other than REO
Property that was security for a Serviced Loan Group), except as set forth
below, 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.
With respect to REO Property that was security for a Serviced Loan Group, only
the portion of such amounts payable to the holder of the Michigan Plaza Pari
Passu Loan or Royal Airport Office Mortgage Loan, as applicable, shall be
included in REO Income.
"REO Mortgage Loan" means a Mortgage Loan, as to which the related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's interest
therein, if the Mortgaged Property securing a Loan Group or Serviced Loan Group
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 close of business on the third Business Day
before the related Distribution Date.
"Reporting Servicer" means the Master Servicers, the Special
Servicers, any Primary Servicer, each Reporting Sub-Servicer, the Trustee, and
any Additional Servicer, as the case may be.
"Reporting Sub-Servicer" means any Person that (i) is a Servicing
Function Participant, (ii) Services the assets of the Trust on behalf of (a) the
Trust, (b) the Trustee, (c) the Master Servicers, (d) the Special Servicers, (e)
any Additional Servicer or (f) any other Person that otherwise constitutes a
"Sub-Servicer," and (iii) is responsible for the performance (whether directly
or through sub-servicers or Subcontractors) of Servicing functions that are
required to be performed by the Trustee, the Master Servicers, the Special
Servicers or any Additional Servicer under this Agreement or any sub-servicing
agreement and are identified in Item 1122(d) of Regulation AB. For clarification
purposes, any Primary Servicer is a Reporting Sub-Servicer.
"Repurchased Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan (or Serviced Loan
Group) as to which an Appraisal Event has occurred. A Mortgage Loan (or Serviced
Loan Group) 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, which may be a sub-account of the Distribution Account.
"Residual Certificates" means, with respect to REMIC I, the Class
R-I Certificates; with respect to REMIC II, the Class R-II Certificates; and
with respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the initial
Trustee, any officer assigned to the Global Securities and Trust Services, with
specific responsibilities for the matters contemplated by this Agreement and
when used with respect to any successor Trustee, 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.
"Restricted Servicer Reports" means, collectively, to the extent not
filed with the Commission, the CMSA Servicer Watch List, the CMSA Operating
Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA Financial
File and the CMSA Comparative Financial Status Report.
"Reverse Sequential Order" means sequentially to the Class P, Class
O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class
E, Class D, Class C, Class B, Class A-J, Class A-M, and finally to the Class X,
Class X-Y, Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4
Certificates on a pro rata basis, as described herein.
"Royal Airport Office B Note" means the mortgage loan, which is not
included in the Trust and subordinated in right of payment to the Royal Airport
Office Mortgage Loan to the extent set forth in the Royal Airport Office
Co-Lender Agreement. The Royal Airport Office B Note is not a "Mortgage Loan."
"Royal Airport Office Co-Lender Agreement" means, with respect to
the Royal Airport Office Mortgage Loan and the Royal Airport Office B Note, the
related intercreditor agreement, dated as of May 24, 2006, by and among the
holder of the Royal Airport Office Mortgage Loan and the holder of the Royal
Airport Office B Note 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.
"Royal Airport Office Directing Holder" means the holder of the
Royal Airport Office B Note; unless at the time of determination, each of the
following conditions are satisfied:
(i) (a)(1) the initial unpaid principal balance of the Royal Airport
Office B Note as of the relevant date of determination minus (2) the sum of (x)
any scheduled payments or prepayments of principal allocated to, and received
on, the Royal Airport Office B Note, (y) any Appraisal Reduction in effect as of
such date of determination and (z) any realized losses allocated to the Royal
Airport Office B Note pursuant to the Royal Airport Office Co-Lender Agreement
and/or this Agreement is less than (b) 50% of (1) the initial unpaid principal
balance of the Royal Airport Office B Note less, (2) any scheduled payments or
prepayments of principal allocated to, and received on, the Royal Airport Office
B Note; and
(ii) the Royal Airport Office Mortgage Loan has not been paid in
full,
then, the Operating Adviser shall be the Royal Airport Office
Directing Holder.
"Royal Airport Office Loan Group" means, collectively, the Royal
Airport Office Mortgage Loan and the Royal Airport Office B Note.
"Royal Airport Office Mortgage Loan" means the mortgage loan
designated as Mortgage Loan No. 65 on the Mortgage Loan Schedule.
"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.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification" has the meaning set forth in Section
13.6.
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan or Serviced Companion Loan required to be
paid on its Due Date by the Mortgagor in accordance with the terms of the
related Mortgage 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).
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan, Serviced Companion Loan or any 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 Loan or
such REO Mortgage Loan.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Seller" means MSMC, IXIS, NCB, FSB, MM, SunTrust, UCMFI or NCCB, as
the case may be.
"Seller Sub-Servicer": A Sub-Servicer or Additional Servicer
required to be retained by a Master Servicer or Special Servicer, as applicable,
by a Seller, as listed on Schedule XX hereto.
"Service(s)(ing)" means, in accordance with Regulation AB, the act
of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"Serviced Companion Loan Custodial Account" means the custodial
sub-account of the Certificate Account (but which is not included in the Trust)
created and maintained by the General Master Servicer pursuant to Section 5.1(c)
on behalf of the holder(s) of each Serviced Companion Loan. The Serviced
Companion Loan Custodial Account shall be maintained as a sub-account of an
Eligible Account.
"Serviced Companion Loan" means either the Michigan Plaza Companion
Loan or the Royal Airport Office B Note, as the context may require.
"Serviced Loan Group" means either the Michigan Plaza Loan Group or
the Royal Airport Office Loan Group, as the context may require.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by each Master Servicer, each Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance policy under which the insurer agrees to indemnify each Master
Servicer, each Special Servicer, the Trustee or the Paying Agent, as the case
may be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of a Master Servicer's, a Special Servicer's, the Trustee's or the
Paying Agent's, as the case may be, officers or employees and is maintained in
accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage
Loans other than the MSMC Loans, copies of the mortgage documents listed in the
definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect
to the MSMC Loans, copies of the mortgage documents listed in the definition of
Mortgage File relating to a Mortgage Loan and, to the extent required to be (and
actually) delivered to the General Master Servicer by the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master
Servicers, the Special Servicers or the Trustee, as the case may be, designated
as a Servicing Advance pursuant to this Agreement and any other costs and
expenses incurred by or for such Master Servicer, such Special Servicer or the
Trustee, as the case may be, to protect and preserve the security for a Mortgage
Loan (and/or a Serviced Companion Loan, as applicable).
"Servicing Criteria" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Function Participant" means any Person, other than the
Master Servicers, the Special Servicers, the Trustee and the Paying Agent that,
within the meaning of Item 1122 of Regulation AB, is performing activities
addressed by the Servicing Criteria, unless such Person's activities relate only
to 5% or less of the Mortgage Loans (based on their Principal Balance). For
clarification purposes, each Primary Servicer is a Servicing Function
Participant.
"Servicing Officer" means, any officer or employee of the Master
Servicers or Special Servicers involved in, or responsible for, the
administration and servicing of the Mortgage Loans and the Serviced Companion
Loans or this Agreement and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's or employee's
knowledge of and familiarity with the particular subject, and, in the case of
any certification required to be signed by a Servicing Officer, such an officer
or employee whose name and specimen signature appears on a list of servicing
officers furnished to the Trustee by the Master Servicers or the Special
Servicers, as applicable, as such list may from time to time be amended.
"Servicing Standard" means the standard by which the Master
Servicers and Special Servicers will service and administer the Mortgage Loans,
Serviced Companion Loans and/or REO Properties that it is obligated to service
and administer pursuant to this Agreement in the best interests and for the
benefit of the Certificateholders (and, in the case of a Serviced Companion
Loan, the holder of such Serviced Companion Loan) as a collective whole (and as
determined by the applicable Master Servicer or the applicable Special Servicer,
as applicable, in its good faith and reasonable judgment), to perform such
servicing and administration in accordance with applicable law, the terms of
this Agreement, and the terms of the respective subject Mortgage Loans and
Serviced Companion Loans, as applicable (and, in the case of a Serviced Loan
Group, the related Co-Lender Agreement), and, to the extent consistent with the
foregoing, further as follows:
(i) with the same skill, care and diligence as is normal and usual
in its mortgage servicing activities on behalf of third parties or on
behalf of itself, whichever is higher, and in the case of a Special
Servicer, its REO Property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to
mortgage loans that are comparable to the Mortgage Loans; and
(ii) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans (and the Serviced
Companion Loans) and, in the case of a Special Servicer, if a serviced
Mortgage Loan (or Serviced Companion Loan) comes into and continues in
default, and if, in the judgment of such Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments,
the maximization of the recovery on that Mortgage Loan (or Serviced
Companion Loan, as applicable) to the Certificateholders, as a collective
whole (or, in the case of a Serviced Loan Group, the maximization of
recovery of principal and interest thereon to the Certificateholders and
the holder of the related Serviced Companion Loan, as a collective whole),
on a net present value basis;
but without regard to: (I) any relationship that a Master Servicer or 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 a Serviced
Companion Loan, as applicable) by a Master Servicer or Special Servicer, as the
case may be, or any Affiliate thereof; (III) a Master Servicer's obligation to
make P&I Advances or Servicing Advances; (IV) a Special Servicer's obligation to
request that a Master Servicer make Servicing Advances; (V) the right of a
Master Servicer (or any Affiliate thereof) or Special Servicer (or any Affiliate
thereof), as the case may be, to receive reimbursement of costs, or the
sufficiency of any compensation payable to it under this Agreement or with
respect to any particular transaction; and (VI) except with respect to the
General Master Servicer, any obligation of the NCB Master Servicer or any of its
Affiliates (in their capacity as a Seller) to cure a breach of a representation
or warranty or repurchase any Mortgage Loan.
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) a payment default shall have occurred on a Mortgage Loan
or Serviced Companion Loan (x) at its Maturity Date (except, if (a) the
Mortgagor is making its Assumed Scheduled Payment, (b) the Mortgagor notifies
the applicable Master Servicer (who shall forward such notice to the other
Master Servicer, the Special Servicers and the Operating Adviser) of its intent
to refinance such Mortgage Loan or Serviced Companion Loan, as applicable, and
is diligently pursuing such refinancing, (c) the Mortgagor delivers a firm
commitment to refinance acceptable to the Operating Adviser on or prior to the
Maturity Date, and (d) such refinancing occurs within 60 days of such default,
which 60-day period may be extended to 120 days at the Operating Adviser's
discretion) or (y) if any other payment is more than 60 days past due or has not
been made on or before the second Due Date following the date such payment was
due; (ii) any Mortgage Loan (or Serviced Companion Loan) as to which, to the
applicable Master Servicer's or applicable Special 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, undismissed or unstayed for a
period of 30 days; (iii) any Mortgage Loan (or Serviced Companion Loan) as to
which the applicable Master Servicer or applicable Special Servicer shall have
received notice of the foreclosure or proposed foreclosure of any other lien on
the Mortgaged Property; (iv) any Mortgage Loan (or Serviced Companion Loan) as
to which the applicable Master Servicer or applicable 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 such
Master Servicer or applicable Special Servicer materially and adversely affects
the interests of the Certificateholders (or the holder of a Serviced Companion
Loan, as applicable) and which has occurred and remains unremedied for the
applicable grace period specified in such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any Mortgage Loan (or Serviced Companion Loan) as to
which the Mortgagor admits in writing its inability to pay its debts generally
as they become due, files a petition to take advantage of any applicable
insolvency or reorganization statute, makes an assignment for the benefit of its
creditors or voluntarily suspends payment of its obligations; and (vi) any
Mortgage Loan (or Serviced Companion Loan) as to which, in the good faith
reasonable judgment (in accordance with the Servicing Standard) of the
applicable Master Servicer or Special Servicer, (a) a payment default is
imminent or is likely to occur within 60 days and such default, in the judgment
of such Master Servicer or Special Servicer, is reasonably likely to materially
and adversely affect the interests of the Certificateholders or (b) any other
default is imminent or is likely to occur within 60 days and such default, in
the judgment of such Master Servicer or Special Servicer, is reasonably likely
to materially and adversely affect the interests of the Certificateholders
(provided that any such determination by the applicable Special Servicer that a
payment default is imminent shall not be a Servicing Transfer Event unless the
Operating Adviser concurs). If a Servicing Transfer Event occurs with respect to
the Michigan Plaza Pari Passu Loan or Royal Airport Office Mortgage Loan, it
shall be deemed to have occurred also with respect to the related Serviced
Companion Loan. If a Servicing Transfer Event occurs with respect to a Serviced
Companion Loan, it shall be deemed to have occurred also with respect to the
Michigan Plaza Pari Passu Loan or Royal Airport Office Mortgage Loan, as
applicable.
"Significant Mortgage Loan" means a Mortgage Loan which has a
Principal Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 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 Mortgage Pool.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with Affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X, Class X-Y, Class J, Class K, Class L, Class M, Class N,
Class O, Class P and Class EI Certificates or an assignment of the voting rights
thereof; provided, however, that the Certificate Balances of the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero.
"Special Servicer" means: (a) with respect to any Mortgage Loan
(other than a Co-op Mortgage Loan), Serviced Companion Loan, any REO Property
acquired by the Trust with respect to a Mortgage Loan (other than a Co-op
Mortgage Loan) and any matters relating to the foregoing, the General Special
Servicer and (b) with respect to any Co-op Mortgage Loan, any REO Property
acquired by the Trust with respect to a Co-op Mortgage Loan and any matters
relating to the foregoing, the Co-op Special Servicer.
"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 a 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 (or Serviced Companion Loan) 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 or Serviced Companion Loan, as applicable, 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 0.35% per annum, with a minimum
of $4,000 per month per Specially Serviced Mortgage Loan or REO Property.
"Special Servicing Officer" means any officer or employee of the
applicable Special Servicer involved in, or responsible for, the administration
and servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the applicable Master Servicer by such Special
Servicer signed by an officer of such Special Servicer, as such list may from
time to time be amended.
"Specially Designated Co-op Mortgage Loan" means, any Co-op Mortgage
Loan or any successor REO Mortgage Loan.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan (or Serviced Companion Loan) with respect to
which a Servicing Transfer Event has occurred and is continuing. Promptly upon a
Mortgage Loan (or Serviced Companion Loan) becoming a Specially Serviced
Mortgage Loan, the applicable Master Servicer shall be responsible to deliver to
the applicable Special Servicer all information, documents and records relating
to such Mortgage Loan (or Serviced Companion Loan), as reasonably requested by
such Special Servicer to enable it to assume its duties with respect to such
Mortgage Loan (or Serviced Companion Loan). A Specially Serviced Mortgage Loan
shall cease to be a Specially Serviced Mortgage Loan from and after the date on
which the applicable 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 (or Serviced Loan Group, as applicable),
with respect to such Servicing Transfer Event, has become a Rehabilitated
Mortgage Loan, unless and until such Master Servicer notifies such 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 (or
Serviced Loan Group), 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.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicers, the Special Servicers, an Additional Servicer, a Reporting
Sub-Servicer or the Trustee.
"Sub-Servicing Agreement" means the IXIS Sub-Servicing Agreement, or
any other agreement between a Master Servicer or Primary Servicer and a
Sub-Servicer, with respect to the servicing, primary servicing or sub-servicing
of one or more Mortgage Loans.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificates" means, collectively, the Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"SunTrust" has the meaning assigned in the Preliminary Statement
hereto.
"SunTrust Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement VI and shown on
Schedule VI hereto.
"Tax Matters Person" means the Person designated as the "tax matters
person" of the related REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"Termination Price" has the meaning set forth in Section 10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve 30-day months.
"Title Insurance Policy" means a title insurance policy maintained
with respect to a 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 of which consist of all the assets of REMIC I (including the related
Mortgage Loans (other than Excess Interest thereon), such related amounts as
shall from time to time be held in the Certificate Accounts, the Distribution
Account (other than the Excess Interest Sub-Account), the Interest Reserve
Account, the Reserve Account, the REO Accounts, the Trustee's rights under the
Insurance Policies, any REO Properties and other items referred to in Section
2.1(a) hereof, in each case to the extent allocable to the related Mortgage
Loan), the REMIC I Regular Interests, the REMIC II Regular Interests, Excess
Interest and the Excess Interest Sub-Account. The Trust shall not include any
Serviced Companion Loan, any interest of the holder of a Serviced Companion Loan
or the Serviced Companion 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.
"Trustee Fee Rate" means 0.0012% per annum.
"Trustee Mortgage File" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan (and
Serviced Companion Loan, as applicable) and any additional documents required to
be added to the Mortgage File pursuant to this Agreement; provided that whenever
the term "Trustee Mortgage File" is used to refer to documents actually received
by the Trustee or a Custodian on its behalf, such terms shall not be deemed to
include such documents required to be included therein unless they are actually
so received.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"UCMFI" has the meaning assigned in the Preliminary Statement
hereto.
"UCMFI Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement V and shown on
Schedule III hereto.
"Underwriter" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Greenwich Capital Markets, Inc., IXIS Securities North America Inc. Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and SunTrust Capital Markets, Inc.,
or their respective successors-in-interest.
"United States Person" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a United States Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, Affiliates and pension plans.
"United States Tax Person" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership (except to the extent
provided in applicable Treasury Regulations) created or organized in or under
the laws of the United States or any State thereof or the District of Columbia,
including any entity treated as such a corporation or partnership for federal
income tax purposes, (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 (or to the
extent provided in applicable Treasury Regulations, a trust in existence on
August 20, 1996, which is eligible to elect to be treated as a United States Tax
Person).
"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 as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any Class of Interests or Certificates (excluding the Residual Certificates and
the Class EI 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, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report and, if and to the
extent filed with the Commission, such reports and files as would, but for such
filing, constitute Restricted Master Servicer Reports.
"Weighted Average Class X-Y Strip Rate" means, with respect to any
Distribution Date, the weighted average of the Class X-Y Strip Rates for each of
the Group X-Y REMIC I Regular Interests, weighted on the basis of their
respective Notional Amounts as of the close of business on the preceding
Distribution Date.
"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 Balance 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, equal to the product of (x) 1.00% and (y) the amount of each
collection of interest (other than default interest and Excess Interest) and
principal received (including any Condemnation Proceeds received and applied as
a collection of such interest and principal) on such Mortgage Loan (or Serviced
Companion Loan, as applicable) so long as it remains a Rehabilitated Mortgage
Loan or otherwise payable as set forth in Section 9.21(d).
"Yield Maintenance Charges" means, with respect to any Distribution
Date, the aggregate of all yield maintenance charges, if any, received during
the related Collection Period in connection with Principal Prepayments.
"Yield Maintenance Minimum Amount" means, with respect to a Mortgage
Loan that provides for a Yield Maintenance Charge to be paid in connection with
any Principal Prepayment thereon or other early collection of principal thereof,
any specified amount or specified percentage of the amount prepaid which
constitutes the minimum amount that such Yield Maintenance Charge may be.
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 (or Serviced Loan Group, as
applicable) shall be made based upon current information as to the terms of such
Mortgage Loan (or Serviced Loan Group, as applicable) and reports of payments
received from the applicable Master Servicer on such Mortgage Loan (or Serviced
Loan Group, as applicable) and payments to be made to the Paying Agent as
supplied to the Paying Agent by such 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
documents (or with respect to a Serviced Loan Group, the related Co-Lender
Agreement), any amounts (other than escrow and reserve deposits and
reimbursements of Servicing Advances and expenses) received in respect of a
Mortgage Loan (or Serviced Companion Loan) as to which a default has occurred
and is continuing (other than Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds and REO Income) shall be applied as
follows: first, to overdue interest due with respect to such Mortgage Loan (or
Serviced Companion Loan) at the Mortgage Rate thereof, second, to current
interest due with respect to such Mortgage Loan (or Serviced Companion Loan) at
the Mortgage Rate thereof, third, to the reduction of the Principal Balance of
such Mortgage Loan (or Serviced Companion Loan) to zero if such Mortgage Loan
(or Serviced Companion Loan, as applicable) has been accelerated, and in respect
of any scheduled payments of principal then due to the extent that such Mortgage
Loan (or Serviced Companion Loan, as applicable) has not yet been accelerated,
fourth, to any default interest and other amounts due on such Mortgage Loan (or
Serviced Companion Loan) and fifth, to Late Fees due with respect to such
Mortgage Loan (or Serviced Companion Loan).
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase Proceeds and REO Income shall be applied as follows: first, as a
recovery of any related and unreimbursed Advances (together with interest
thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing compensation;
third, as a recovery of any Additional Trust Expenses, fourth, as a recovery of
any Nonrecoverable Advances and interest thereon, except with respect to any
Unliquidated Advance previously reimbursed from principal pursuant to Section
5.2(a)(II)(iv); fifth, as a recovery of any remaining accrued and unpaid
interest on such Mortgage Loan (or Serviced Companion Loan) at the related
Mortgage Rate to, but not including, the date of receipt (or, in the case of a
full monthly payment from any Mortgagor, through the related Due Date); sixth,
as a recovery of any remaining principal of such Mortgage Loan or Serviced
Companion Loan) then due and owing, including by reason of acceleration of the
Mortgage Loan (or Serviced Companion Loan) following a default thereunder (or,
if a Liquidation Event has occurred in respect of such Mortgage Loan (or
Serviced Companion Loan), as a recovery of principal to the extent of its entire
remaining unpaid Principal Balance); seventh, unless a Liquidation Event has
occurred with respect to such Mortgage Loan (or Serviced Companion Loan), as a
recovery of amounts to be currently applied to the payment of real estate taxes,
assessments, insurance premiums (including premiums on any Environmental
Insurance Policy), ground rents (if applicable) and similar items; eighth, as a
recovery of any Late Fees and default interest then due and owing under such
Mortgage Loan (or Serviced Companion Loan); ninth, as a recovery of any
Prepayment Premium or Yield Maintenance Charge then due and owing under such
Mortgage Loan (or Serviced Companion Loan); tenth, as a recovery of any
assumption fees, Modification Fees and extension fees then due and owing under
such Mortgage Loan (or Serviced Companion Loan); and eleventh, as a recovery of
any other amounts then due and owing under such Mortgage Loan (or Serviced
Companion Loan).
(c) Notwithstanding the foregoing applications of amounts received
by or on behalf of the Trust in respect of any Mortgage Loan (or Serviced
Companion Loan), any amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) (or, with
respect to a Serviced Companion Loan, any amounts due and owing under the
related mortgage note and mortgage, excluding amounts for principal and accrued
and unpaid interest) shall be applied in accordance with the express provisions
of the related Mortgage Loan documents.
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. Pass-Through Rates shall be
carried out to eight decimal places, rounded if necessary. All dollar amounts
calculated hereunder shall be rounded to the nearest xxxxx.
Section 1.4 Interpretation
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
Section 1.5 ARD Loan
Notwithstanding any provision of this Agreement:
(a) For the ARD Loan, 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 a Master Servicer nor a 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 such Master Servicer and such 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 the ARD Loan after its Anticipated Repayment
Date, the respective Master Servicer or the respective Special Servicer, as the
case may be, shall be permitted, in its discretion, to waive in accordance with
Section 14.1 and Section 14.2 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 respective Master Servicer's or
the respective Special Servicer's determination to waive the right to such
accrued Excess Interest is in accordance with the Servicing Standard and with
Section 14.1 and Section 14.2 hereof. The respective Master Servicer or the
respective 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 the Serviced Loan
Groups.
(a) The parties hereto acknowledge that, pursuant to the related
Co-Lender Agreement, if the Michigan Plaza Pari Passu Loan or Royal Airport
Office Mortgage Loan is no longer part of the Trust or is no longer serviced
pursuant to the terms of this Agreement, the holder of the Michigan Plaza Pari
Passu Loan or Royal Airport Office Mortgage Loan, as applicable, shall negotiate
one or more new servicing agreements with the General Master Servicer and the
General Special Servicer; provided that, prior to entering into any such new
servicing agreement, the new holder of the Michigan Plaza Pari Passu Loan or
Royal Airport Office Mortgage Loan, as applicable, shall obtain and provide to
the holder of the related Serviced Companion Loan Rating Agency Confirmation and
written confirmation from each rating agency then rating any securitization
relating to the related Serviced Companion Loan 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 further, that prior to such time the General Master
Servicer and the General Special Servicer shall continue to service the Michigan
Plaza Loan Group under this Agreement to the extent provided in the Michigan
Plaza Co-Lender Agreement.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the General Master
Servicer and the General Special Servicer under Article VIII and Article IX and
the obligation of the General Master Servicer to make Advances, insofar as such
rights, duties and obligations relate to the Serviced Loan Group, shall
terminate upon the earliest to occur of the following with respect to the
Serviced Loan Group: (i) any repurchase of or substitution for the Michigan
Plaza Pari Passu Loan or Royal Airport Office Mortgage Loan, as applicable, by
the applicable Seller pursuant to Section 2.3 and (ii) any payment in full of
any and all amounts due (or deemed due) under the Michigan Plaza Pari Passu Loan
or Royal Airport Office Mortgage Loan (or any of their successor REO Mortgage
Loans) (including amounts to which the holder of the Michigan Plaza Pari Passu
Loan or Royal Airport Office Mortgage Loan is entitled under the related
Co-Lender Agreement); provided, however, that this statement shall not limit (A)
the duty of the General Master Servicer or the General 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 General Master Servicer or the General Special Servicer that may otherwise
accrue or arise in connection with the performance of its duties hereunder with
respect to a Serviced Loan Group prior to the date on which such event occurs.
(c) In connection with an event described in clause (ii) of
subsection (b), the Trustee, the General Master Servicer and the General Special
Servicer shall each tender to the holder of the applicable Serviced Companion
Loan (if then still outstanding), upon delivery to them of a receipt executed by
such holder, all portions of the Mortgage File and other documents pertaining to
such a Serviced Loan Group, 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 General
Master Servicer of a Request for Release. The General Master Servicer shall, and
is also hereby authorized and empowered by the Trustee to, convey to such holder
any deposits then held in an Escrow Account relating to a Serviced Loan Group.
If any of the Michigan Plaza Pari Passu Loan, the Michigan Plaza Companion Loan,
the Royal Airport Office Mortgage Loan or Royal Airport Office B Note under the
applicable Mortgage Loan are then REO Mortgage Loans, then the General Special
Servicer shall, and is also hereby authorized and empowered by the Trustee to,
convey to such holder, to the extent not needed to pay or reimburse the General
Master Servicer, the General Special Servicer or the Trustee in accordance with
this Agreement, deposits then held in the REO Account insofar as such funds
relate to the related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of the General Master Servicer, the General Special Servicer, the
Trustee or the Paying Agent, as applicable, primarily to the administration of
the Trust or any REMIC formed hereunder or to any determination respecting the
amount, payment or avoidance of any tax under the REMIC Provisions or the actual
payment of any REMIC tax or expense with respect to any REMIC formed hereunder,
then such expense shall not be allocated to, deducted or reimbursed from, or
otherwise charged against the holder of a Serviced Companion Loan 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, (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 Depositor's rights under each Co-Lender Agreement and (iv) all other assets
included or to be included in REMIC I for the benefit of REMIC II and REMIC III.
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 Trustee, by the execution and delivery of
this Agreement, hereby agrees that the Michigan Plaza Pari Passu Loan and the
Michigan Plaza Companion Loan remain subject to the Michigan Plaza Co-Lender
Agreement and that the Royal Airport Office Mortgage Loan and the Royal Airport
Office B Note remain subject to the Royal Airport Office Co-Lender Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed hereunder, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Paying Agent, any Custodian, any Master
Servicer or any 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) Each Seller other than IXIS, NCCB, NCB, FSB and Mass Mutual, at
its own expense, for the Mortgage Loans sold to the Depositor by such Seller,
and the Trustee, at the expense of IXIS, NCCB, NCB, FSB and Mass Mutual, as
applicable, for the IXIS Loans sold to the Depositor by IXIS, the NCCB Loan sold
to the Depositor by NCCB, the NCB, FSB Loans sold to the Depositor by NCB, FSB
and the Mass Mutual Loans sold to the Depositor by Mass Mutual, shall promptly
(and in any event within 90 days following the receipt of all recording
information necessary to record such document) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC financing statements, as appropriate, each
assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of
the definition of "Mortgage File". Each such assignment shall reflect that it
should be returned by the public recording office to the Trustee following
recording or filing (except with respect to any Mortgage File document recorded
in the name of MERS or its designee); 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 Trustee
shall obtain therefrom, at the expense of the applicable Seller, a certified
copy of the recorded original and shall forward copies thereof to the applicable
Master Servicer and the applicable Special Servicer. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Trustee shall promptly notify the applicable
Seller and the applicable Seller for its respective Mortgage Loans shall
promptly prepare or cause to be prepared and delivered to the Trustee a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall upon receipt thereof from such Seller cause the same to be duly
recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreements or Exhibit 5 to the Mortgage Loan Purchase
Agreements in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, such Master Servicer and, in
the event of the failure or incapacity of the Trustee and such Master Servicer,
such 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 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 that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if 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 servicing of any
Mortgage Loans or Serviced Companion Loan and that are not required to be a part
of a Mortgage File in accordance with the definition thereof and are reasonably
necessary for the ongoing administration and/or servicing of the applicable
Mortgage Loan shall be delivered to the Master Servicer (with a copy to the
related Primary Servicer, if applicable), on or before the date that is 75 days
following the Closing Date and shall be held by such Master Servicer or the
related Primary Servicer on behalf of the Trustee in trust for the benefit of
the Certificateholders. To the extent delivered to the Master Servicer and the
related Sub-Servicer or the related Primary Servicer, as applicable, by the
related Seller, the Servicer Mortgage File will consist of the documents listed
in the definition of Mortgage File; provided, however, the Seller shall not be
required to deliver any draft documents, attorney-client privileged
communications, internal correspondence or credit analysis. Delivery of any of
the foregoing documents to the applicable Primary Servicer (or sub-servicer)
shall be deemed delivery to the applicable Master Servicer and satisfy the
Depositor's obligations under this Section 2.1(d). Each of the foregoing items
shall be delivered in electronic form, to the extent such document is available
in such form and such form is reasonably acceptable to the applicable Master
Servicer. None of any Master Servicer, any Special Servicer or any Primary
Servicer shall have any liability for the absence of any of the foregoing items
from the Servicing Mortgage File if such item was not delivered by the related
Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee and the Master
Servicer 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 IXIS Loans from IXIS, the NCB, FSB Loans from NCB, FSB, the
MM Loans from MM, the SunTrust Loans from SunTrust, the UCMFI Loans from UCMFI
and the NCCB Loan from NCCB. The Depositor will deliver the original Mortgage
Notes (or lost note affidavits 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 the original Mortgage Notes (or
lost note affidavits with copies of the related Mortgage Notes, as described in
the definition of Mortgage File) relating to the IXIS 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 the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the NCB, FSB 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 the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Note, as described in the
definition of Mortgage File) relating to the MM 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 the original Mortgage Notes (or lost note
affidavits 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. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies the related Mortgage Note, as described in the definition
of Mortgage File) relating to the UCMFI 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 the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the NCCB Loan 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, IXIS, NCB, FSB, MM, SunTrust, UCMFI and NCCB, as applicable, are required
under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages
and assignments of Assignments of Leases and assignments of UCC financing
statements in blank or naming the Trustee, on behalf of the Certificateholders,
as assignee. Notwithstanding the fact that the assignments shall be in blank or
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 IXIS Loans
shall be deemed to have been transferred from IXIS to the Depositor, the NCB,
FSB Loans shall be deemed to have been transferred from NCB, FSB to the
Depositor, the MM Loans shall be deemed to have been transferred from MM to the
Depositor, the SunTrust Loans shall be deemed to have been transferred from
SunTrust to the Depositor, the UCMFI Loans shall be deemed to have been
transferred from UCMFI to the Depositor, the NCCB Loan shall be deemed to have
been transferred from NCCB 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, (iii) the
REMIC II Regular Interests and (iv) the assets of the Class EI Grantor Trust, in
each case, in trust for the use and benefit of all present and future
Certificateholder. To extent that the contents of the Mortgage File for the
Michigan Plaza Pari Passu Loan or Royal Airport Office Mortgage Loan relate to
the Michigan Plaza Companion Loan or Royal Airport Office B Note, as applicable,
the Trustee (or the Custodian on the Trustee's behalf) shall also hold such
Mortgage File in trust for the benefit of the holder of such Serviced Companion
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 Master Servicers, the Special Servicers and the
Operating Adviser, 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 may 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 to Mortgage
File delivery 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 to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clauses (i), (ii), (iv), (vi), (viii) 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 any applicable Primary Servicing
Agreement), and with respect to all documents specified in the other clauses of
the definition of Mortgage File to the extent actually known by a Responsible
Officer of the Trustee to be required pursuant to this Agreement (assuming that,
with respect to the documents referred to in clause (xii) of the definition of
Mortgage File, an original letter of credit in the possession of the Trustee is
not so required, unless a Responsible Officer of the Trustee has actual
knowledge to the contrary), 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 Mortgage or
the appraisal of the related Mortgaged Property, the street address of the
Mortgaged Property set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, (D) each Mortgage Note has been endorsed as required by the
terms of this Agreement and (E) the Trustee on behalf of the Trust is shown as
the owner of each Mortgage recorded in the name of MERS. Notwithstanding the
foregoing, the delivery of an original or a copy of a binder, pro forma policy
or title commitment certified by the title company 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. The Trustee shall deliver to the
Master Servicers, the Special Servicers, the Operating Adviser and each Seller a
copy of such Final Certification, which may be in electronic format.
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
applicable Special Servicer, the Operating Adviser and each Seller, and if any
recorded assignment of Mortgage has not been received by the Trustee by such
time, the Trustee shall provide information in such confirmation on the status
of missing assignments. The Trustee agrees to use reasonable efforts to submit
for recording any unrecorded assignments of Mortgage that have been delivered to
it (including effecting such recordation process through or cooperating with the
applicable Seller) such recordation to be at the expense of the applicable
Seller; provided, however, that the Trustee shall not submit for recording any
such assignments if the applicable Seller produces evidence that it has sent any
such assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock-box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and (iii) the second anniversary of the Closing
Date, and shall provide such updated schedule of exceptions (which may be in
electronic format) to each of the Depositor, each Seller (as to its respective
Mortgage Loans only), the applicable Master Servicer, the applicable Special
Servicer, the Operating Adviser, the Paying Agent and the holder of a Serviced
Companion 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,
except, with respect to clause (iii) above, the Trustee shall continue to
provide such updated schedule of exceptions annually after such date). 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 pursuant to Sections 5.4(e) and 5.4(f). Promptly, and
in any event within two Business Days, following any request therefor by the
Depositor, the applicable Master Servicer, the applicable Special Servicer, the
Operating Adviser or the holder of a Serviced Companion Loan, as applicable,
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 pursuant to Section 5.4(e). Upon request, the General Master Servicer
shall provide to the Trustee the name and the address of the holder of each
Serviced Companion Loan.
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.
The Master Servicer agrees to hold all of the original letters of
credit, which are part of the Mortgage File, in trust for the benefit of the
Trust Fund.
Section 2.3 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 (and including the expiration of any grace or cure period), has not
been properly executed, or is defective on its face or discovers or receives
notice of a breach of any of the representations and warranties relating to the
Mortgage Loans required to be made by a Seller regarding the characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth in the
related Mortgage Loan Purchase Agreements, and in either case 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") such party shall give prompt written
notice to the other parties hereto and to each Rating Agency subject to the
terms of the applicable Mortgage Loan Purchase Agreement. 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 applicable 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 at the end of the
initial 90 day period 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 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. Notwithstanding
anything herein to the contrary, any breach of the representation and warranty
contained under the heading "Prepayment Premiums" in Exhibit 2 to each Mortgage
Loan Purchase Agreement with respect to any Mortgage Loan shall constitute a
Material Breach only if such prepayment premium or yield maintenance charge is
not deemed "customary" for commercial mortgage loans at the time of origination,
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. In addition, if such Mortgage Loan is modified so that it becomes a
Qualifying Substitute Mortgage Loan, such breach shall be deemed cured and the
related Seller will not be obligated to repurchase such Mortgage Loan or
otherwise remedy such breach. The related Seller is required to pay for any
expenses incurred by the applicable Master Servicer or the applicable Special
Servicer in connection with such modification.
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 that is the subject of such Material Breach shall 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 two-year period commencing on the Closing Date, at the
related Seller's option, replace, without recourse, 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, the repurchase or substitution must occur within 90 days from
the earlier of the date the related Seller discovered or was notified of the
breach or defect.
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 such Master Servicer shall be entitled to rely on statements and
certifications from the Trustee for this purpose. If the Mortgage related to the
Qualifying Substitute Mortgage Loan has been recorded in the name of MERS or its
designee, the applicable Master Servicer shall use commercially reasonable
efforts (and the Trustee shall cooperate with such efforts of such Master
Servicer) to reflect the release of such Mortgage on the records of MERS. 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 such 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 such Master Servicer shall deliver or cause to be delivered
such amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the
applicable 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 (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 (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans and (iii) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such other 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 other Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above unless, in
the case of such breach or document defect, 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)"): (1) 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 (determined as provided in the definition of Debt
Service Coverage Ratio, except that net cash flow for such four calendar
quarters, rather than year-end, shall be used) is equal to the greater of (x)
the debt service coverage ratio for all such Mortgage Loans (including the
Affected Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the
Final Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for
all such other Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the lesser of (x) the current Loan-to-Value Ratio for all such Mortgage
Loans (including the Affected Loan(s)) set forth under the heading "Cut-Off Date
LTV" in Appendix II to the Final Prospectus Supplement and (y) 75%. The
determination of the applicable Master Servicer as to whether the conditions set
forth above have been satisfied shall be conclusive and binding in the absence
of manifest error. The applicable Master Servicer will be entitled to cause to
be delivered, or direct the related Seller to (in which case the related Seller
shall) cause to be delivered to such Master Servicer: (i) an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (2) 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) and (ii)
an Opinion of Counsel that not requiring the repurchase of each such other
Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the applicable Seller is required to repurchase or substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above
while the Trustee continues to hold any other Mortgage Loan that is
cross-collateralized and cross-defaulted (each, a "Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or
substitution, the related Mortgage Loan documents in a manner such that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other, would no longer
be cross-defaulted or cross-collateralized with one another; provided that the
applicable Seller shall have furnished the Trustee, at the expense of the
applicable Seller, with a Nondisqualification Opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
Nondisqualification Opinion cannot be furnished, the applicable Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that
such repurchase or substitution of only the Repurchased Loan, notwithstanding
anything to the contrary herein, shall not be permitted and the applicable
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule
IX 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.
Upon occurrence (and after any applicable cure or grace period), 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 and a copy of the Mortgage Note; (b) the absence
from the Mortgage File of the original signed Mortgage, unless there is included
in the Mortgage File (i) a copy of the Mortgage certified by the local authority
with which the Mortgage was recorded or (ii) a true and correct copy of the
Mortgage together with an Officer's Certificate; or (c) the absence from the
Mortgage File of the item called for by paragraph (viii) of the definition of
Mortgage File. If any of the foregoing Material Document Defects is discovered
by the Custodian (or the Trustee if there is no Custodian) or any other party
hereto, 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 and the parties hereto (and, to the
extent that any Material Document Defect relates to the Michigan Plaza Pari
Passu Loan or Royal Airport Office Mortgage Loan, the holder of the Michigan
Plaza Companion Loan or Royal Airport Office B Note, as applicable) and making
demand upon the related Seller for the cure of the document defect or repurchase
or replacement of the related Mortgage Loan.
(b) 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 applicable 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 Section
9.12, Section 9.15, Section 9.36 and Section 14.1, as applicable, of this
Agreement, while pursuing the repurchase claim. Each Seller acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such a work-out
shall not constitute a defense to any repurchase claim nor shall such
modification or work-out change the Purchase Price due from the related Seller
for any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon
such Mortgage Loan and sale of the 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, each Master Servicer or Special Servicer, as applicable, shall
notify the related Seller of the discovery of the Material Document Defect or
Material Breach and the related Seller shall be required to follow the
procedures set forth in the related Mortgage Loan Purchase Agreement 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. If a court of competent jurisdiction issues a final order that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the related Seller otherwise accepts liability, then, after
the expiration of any applicable appeal period, 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; provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys fees) related thereto; provided, further, that
if the Seller is the prevailing party in such action, such costs, fees and
expenses (including reasonable attorneys fees) shall be an Additional Trust
Expense.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the Special Servicer will not receive a Liquidation
Fee in connection with such liquidation or sale or any portion of the Work-Out
Fee that accrues after the related Seller receives notice of a breach or defect
until a final determination has been made, as set forth in the prior paragraph,
as to whether the related Seller is or was obligated to repurchase such related
Mortgage Loan or REO Property. Subject to the last two sentences of the first
paragraph of Section 2.3(a), upon such determination, the Special Servicer will
be entitled: (i) with respect to a determination that the related Seller is or
was obligated to repurchase a Mortgage Loan, to collect a Liquidation Fee, if
due in accordance with the definition thereof, based upon the full Purchase
Price of the related Mortgage Loan or REO Property, with such Liquidation Fee
payable by the related Seller or (ii) with respect to a determination that the
related Seller is not or was not obligated to repurchase a Mortgage Loan (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) collect any accrued and unpaid Work-Out Fee, based on
amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amounts to be paid from
amounts in the Certificate 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 the Certificate Account in the month of
substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the related Seller to deposit into the Certificate Account, together
with such shortage, if any, an amount equal to interest on the Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due
Date as to which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of unreimbursed Servicing Advances,
amounts required to be paid to the applicable 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 the Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(c) 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 applicable 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 (including, without limitation, all documents
delivered to the Trustee and such Master Servicer pursuant to the related
Mortgage Loan Purchase Agreement), 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 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 the applicable Escrow Account relating to the Mortgage
Loan being repurchased or substituted for. Each 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 such Master Servicer.
(d) 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 Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the MSMC
Loans, (ii) IXIS, as Seller under Mortgage Loan Purchase Agreement II, will be
providing remedies with respect to the IXIS Loans, (iii) MM, as Seller under
Mortgage Loan Purchase Agreement III, will be providing remedies with respect to
the MM Loans, (iv) NCB, FSB, as Seller under Mortgage Loan Purchase Agreement
IV, will be providing the remedies with respect to the NCB, FSB Loans, (v) NCCB,
as Seller under Mortgage Loan Purchase Agreement VII, will be providing the
remedies with respect to the NCCB Loan, (vi) UCMFI, as Seller under Mortgage
Loan Purchase Agreement V, will be providing the remedies with respect to the
UCMFI Loans and (vii) SunTrust, as Seller under Mortgage Loan Purchase Agreement
VI, will be providing the remedies with respect to the SunTrust Loans.
(e) The Trustee shall enforce the provisions of this Section 2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a designee to
enforce such provisions (which, with the applicable Master Servicer's consent,
may be such Master Servicer or which, with the applicable Special Servicer's
consent, may be such Special Servicer).
Section 2.4 Representations and Warranties
The Depositor hereby represents and warrants to the Master
Servicers, the Special Servicers, the Trustee (in its capacity as Trustee of the
Trust) and the Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests
Effective as of the Closing Date, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, in trust, all the right, title and interest of the Depositor
in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii)
the assets of REMIC II in exchange for the REMIC II Interests, (iii) the assets
of REMIC III in exchange for the REMIC III Certificates and (iv) the assets of
the Class EI Grantor Trust in exchange for the Class EI Certificates.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates
(a) The Certificates shall be in substantially the forms set forth
in Exhibits A-1 through A-27 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 Certificates, the Class A-M Certificates and the
Class A-J Certificates will be issuable in denominations of $25,000 initial
Certificate Balance and in any whole dollar denomination in excess thereof. The
Class X, Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
will be 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 EI, Class R-I, Class R-II and Class R-III Certificates
each will be issued in minimum Percentage Interests of 10% and integral
multiples of 10% in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class A-M, Class A-J,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates 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 EI and Class X-Y 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.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with a transfer of such Non-Registered
Certificate by the Depositor or one of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit D-1 hereto and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached either as Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer shall be made without
registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, any Master Servicer, any Special Servicer, the Paying Agent, the
Trustee or the Certificate Registrar in their respective capacities as such). If
a transfer of any interest in a Non-Registered Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicers, the Special Servicers or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, each Master
Servicer, each 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, Class EI
Certificate or Residual Certificate or any interest therein shall be made (A) to
any retirement plan or other employee benefit plan or 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 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 materially similar provisions of applicable federal, state or local
law or subject the Depositor, the Trustee, the Paying Agent, the Master
Servicers, the Special Servicers or the Certificate Registrar to any obligation
in addition to those undertaken in this Agreement. Each Person who acquires any
Non-Investment Grade Certificate, Class EI 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, in the case of a
Non-Investment Grade Certificate, 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) in the case of a Non-Investment
Grade Certificate, that 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. No transfer of
a Class EI or Residual Certificate will be made to any Person that does not make
the representation in clause (i) of the preceding sentence.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) 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.
(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 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 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 provide the Certificate
Registrar with all information necessary to determine that the
applicable paragraphs of Section 14 of such Transfer Affidavit and
Agreement are true or that Section 14 is not applicable, that it
will not cause income with respect to the Residual Certificate to be
attributable to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of such
Person or any other United States Tax Person 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 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 or is not a
United States Tax Person.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate that is a "pass-through interest holder"
within the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a
Residual Certificate on behalf of a "pass-through interest holder,"
by purchasing an Ownership Interest in such Certificate, agrees to
give the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicers, the Special Servicers, 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 Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such purchaser
may be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Certificate Registrar to such
noncomplying Holder. The terms and conditions of any sale under this
clause (G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
The Trustee shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession
necessary to compute any tax imposed 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. The Person holding the Ownership Interest in a
Residual Certificate shall be responsible for the reasonable compensation of the
Trustee for providing such information. Each Master Servicer shall take all
reasonable action to cooperate with the Trustee in making such information
available.
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 REMIC Pool 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 Servicers, the
Trustee, the Paying Agent or the Certificate Registrar shall have any liability
to the Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicers,
the Special Servicers 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 in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners
Prior to presentation of a Certificate for registration of transfer,
the Master Servicers, the Special Servicers, the Trustee, the Operating Adviser,
the Paying Agent and any agents of the Master Servicers, the Special Servicers,
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 none of the Master
Servicers, the Special Servicers, the Trustee, the Paying Agent, the Operating
Adviser or any agent of the Master Servicers, the Special Servicers, 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, any Master Servicer, any Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicers, the Special Servicers, the Depositor, the Paying Agent,
the Trustee or the Operating Adviser, as applicable, access during normal
business hours to a current list of the Certificateholders. The expense of
providing any such information requested by such Person shall be borne by the
party requesting such information and shall not be borne by the Certificate
Registrar or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Certificate Registrar and the Trustee shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section 3.7 Book-Entry Certificates
(a) The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class A-M, Class A-J, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates, upon original issuance, each shall be issued in the form of one
or more Certificates representing the Book-Entry Certificates, to be delivered
to the Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided that any Non-Investment Grade Certificates sold to Institutional
Accredited Investors who are not Qualified Institutional Buyers will be issued
as Definitive Certificates. The Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the
Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicers, 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 A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates
sold to Institutional Accredited Investors shall be represented by the Rule 144A
IAI Global Certificate for such Class, which shall be deposited with the
Certificate Registrar, as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates initially sold to
Institutional Accredited Investors 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 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 or Clearstream; 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 or Clearstream (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 or Clearstream 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 or Clearstream, as applicable,
thereof). Euroclear or Clearstream, 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 or Clearstream 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 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 and Clearstream).
(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 or Clearstream, 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 or Clearstream, 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.
Section 3.8 Notices to Clearing Agency
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 3.9, the
Paying Agent shall give all such notices and communications specified herein to
be given to Holders of the Book-Entry Certificates to the Clearing Agency which
shall give such notices and communications to the related Participants in
accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the Certificate Registrar in writing
that the Clearing Agency is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not appointed
by the Depositor within 90 days thereof, (ii) the Trustee has instituted or
caused to be instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under this
Agreement and under such Global Certificate and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or advisable for
the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master Servicers in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, the Paying Agent or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the General Master Servicer (with respect to the Mortgage Loans other than
NCB, FSB Loans and the NCCB Loan) and the NCB Master Servicer (with respect to
the NCB, FSB Loans and the NCCB Loan) and, if the applicable Master Servicer
does not make such Advances, by the Trustee, except to the extent that the
applicable Master Servicer or the Trustee determines in accordance with Section
4.4 below, that any such Advance would be a Nonrecoverable Advance.
Section 4.1 P&I Advances by the Master Servicers
(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 such Master Servicer shall
only make a P&I Advance in respect of each Mortgage Loan of such amount on the
Master Servicer Remittance Date. It is understood that the obligation of each
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 such P&I Advance, if made, would be a Nonrecoverable
Advance as determined by the applicable Special Servicer in accordance with the
Servicing Standard and the Special Servicer has notified the Master Servicer of
such determination not later than 24 hours (and on a Business Day) prior to the
date on which the Master Servicer would be required to make such P&I Advance in
the absence of a recoverability determination. Such determination shall be
conclusive and binding on the Trustee and the Certificateholders. The Master
Servicers and the Trustee shall not advance default interest, Balloon Payments,
Prepayment Premiums or any principal and interest payments in respect of the
Michigan Plaza Companion Loan or the Royal Airport Office B Note.
(b) If a Master Servicer determines that there is a P&I Advance
Amount with respect to its applicable Mortgage Loans for a Distribution Date,
such Master Servicer shall on the Master Servicer Remittance Date either (A)
deposit in the applicable Certificate Account an amount equal to the P&I Advance
Amount or (B) utilize funds in such Certificate Account being held for future
distributions or withdrawals to make such Advance. 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 the Michigan Plaza Pari
Passu Loan.
With respect to the Michigan Plaza Pari Passu Loan, the General
Master Servicer shall make its determination that a P&I Advance previously made
on the Michigan Plaza Pari Passu Loan is a Nonrecoverable Advance or that any
proposed P&I Advance, if made, would constitute a Nonrecoverable Advance with
respect to the Michigan Plaza Pari Passu Loan, and the General Special Servicer
shall make its determination in accordance with the Servicing Standard that such
P&I Advance, if made, would constitute a Nonrecoverable Advance, both
determinations to be made in accordance with Section 4.1, including with regard
to any notices required to be delivered to the General Master Servicer by the
General Special Servicer. Both such determinations shall be made independently
of any determination made by any Other Master Servicer under the Other Pooling
and Servicing Agreement following deposit of the Michigan Plaza Companion Loan
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 Other Pooling and Servicing
Agreement) or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable Advance (both as defined in the Other Pooling and Servicing
Agreement) with respect to the Michigan Plaza Companion Loan, in accordance with
the Other Pooling and Servicing Agreement. The determination by the General
Master Servicer, Other Master Servicer or General Special Servicer, as
applicable, 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 General Master Servicer, as
applicable, the Certificateholders and the holders of any securities relating to
the Michigan Plaza Companion Loan.
The General Master Servicer shall not make a P&I Advance with
respect to the Michigan Plaza Pari Passu Loan after its receipt of notice from
the General Special Servicer that the General Special Servicer has determined
that such P&I Advance would constitute a Nonrecoverable Advance.
The General Master Servicer shall not make a P&I Advance with
respect to the Michigan Plaza Pari Passu Loan after its receipt of notice from
the Other Master Servicer that it has determined that it has made a P&I Advance
that is a Nonrecoverable Advance on the Michigan Plaza Companion Loan, or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance
pursuant to the Other Pooling and Servicing Agreement. If the General 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 General Master
Servicer shall provide the Other Master Servicer written notice of such
determination. If the General Master Servicer receives written notice by the
Other Master Servicer that it has determined, with respect to the Michigan Plaza
Companion Loan, that any proposed future P&I Advance would be, or any
outstanding P&I Advance is, a Nonrecoverable Advance, the General Master
Servicer shall not make any additional P&I Advances with respect to the Michigan
Plaza Pari Passu Loan unless the General Master Servicer has consulted with the
Other Master Servicer and they both agree that circumstances with respect to the
Michigan Plaza Loan Group have changed such that a proposed future P&I Advance
would not be a Nonrecoverable Advance. Notwithstanding the foregoing, the
General 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 General Master Servicer or the General Master
Servicer receives written notice of such determination by the Other Master
Servicer, the General Master Servicer shall follow the process set forth in this
paragraph before making any additional P&I Advances with respect to the Michigan
Plaza Pari Passu Loan.
Following a securitization of the Michigan Plaza Companion Loan, the
General Master Servicer shall be required to deliver to the Other Master
Servicer the following information: (i) any loan related information (in the
form received), including without limitation CMSA Reports relating to the
Michigan Plaza Pari Passu Loan, applicable to a determination that an Advance is
or would be a Nonrecoverable Advance, within one Business Day of the General
Master Servicer's receipt thereof, (ii) notice of any Servicing Advance it or
the Trustee makes with respect to the Michigan Plaza Loan Group 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 such 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 such Master Servicer, shall
make Servicing Advances within 5 Business Days after the determination that such
Servicing Advance is necessary (and, in the case of the Trustee, within 6
Business Days after receipt of such notice (i.e., 5 Business Days after receipt
of such notice and one additional Business Day after the delivery of notice to
the applicable Master Servicer, pursuant to Section 4.3(b) hereof, that such
Master Servicer has not made the required Servicing Advance) or, with respect to
such Master Servicer or the Trustee, such shorter period, as may be required to
avoid a foreclosure of liens for delinquent real estate taxes or a lapse in
insurance coverage, to the extent provided in this Agreement, except to the
extent that such Master Servicer or the Trustee, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. If such Master Servicer or the Trustee, as applicable,
determines that such advance would constitute a Nonrecoverable Advance, then
such party shall promptly deliver notice of such determination to the applicable
Special Servicer. Upon receipt of such notice, the applicable Special Servicer
shall determine (with the reasonable assistance of such Master Servicer or the
Trustee, as applicable) whether the payment of such amount is (i) necessary to
preserve the related Mortgaged Property and (ii) would be in the best interest
of the Certificateholders (or, with respect to a Serviced Loan Group, in the
best interests of the Certificateholders and the holder of the related Serviced
Companion Loan, as a collective whole). If such Special Servicer shall determine
that the payment of such amount is (i) necessary to preserve the related
Mortgaged Property and (ii) would be in the best interest of the
Certificateholders (or, with respect to the Serviced Loan Group, in the best
interests of the Certificateholders and the holder of the related Serviced
Companion Loan, as a collective whole), then such Special Servicer shall
promptly direct such Master Servicer or the Trustee, as applicable, in writing
to make such payment and such party shall make such payment from amounts in the
Certificate Account within the time periods set forth herein. Such determination
by such Master Servicer or such Special Servicer shall be conclusive and binding
on the Trustee and the Certificateholders. The applicable 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 such Special Servicer within 1 Business Day of receipt
of a statement therefor sent to the applicable Master Servicer. The applicable
Special Servicer promptly shall notify the applicable Master Servicer that a
Servicing Advance is required in connection with a Specially Serviced Mortgage
Loan or REO Property, and such Master Servicer shall make such Servicing Advance
within 5 Business Days of receipt of such notice (or such shorter period as may
be required to avoid a foreclosure of liens for delinquent real estate taxes or
a lapse in insurance coverage). In addition, each Special Servicer shall provide
the applicable Master Servicer or the Trustee with such information in its
possession as the applicable Master Servicer or the Trustee may reasonably
request to enable such Master Servicer or the Trustee, as applicable, to
determine whether a requested Servicing Advance would constitute a
Nonrecoverable Advance. Any request by a Special Servicer that a Master Servicer
make a Servicing Advance shall be deemed to be a determination by such Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Advance
and such Master Servicer shall be entitled to conclusively rely on such
determination; provided, that the determination shall not be binding on any
Master Servicer or the Trustee. The applicable Master Servicer or Special
Servicer may update or change its recoverability determinations at any time (but
not reverse the other Master Servicer or Special Servicer's determination that
an Advance is a Nonrecoverable Advance). Promptly after discovering that such
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.
Section 4.3 Advances by the Trustee
(a) To the extent that a Master Servicer fails to make a P&I Advance
by the Master Servicer Remittance Date (other than a P&I Advance that such
Master Servicer determines is a Nonrecoverable Advance), and other than with
respect to a Serviced Companion Loan, the Trustee shall make such P&I Advance 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 the Trustee is required
hereunder to make P&I Advances on the Mortgage Loans, it shall remit the amount
thereof to the Paying Agent for deposit 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.
(b) To the extent that a 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 or the applicable Special Servicer
determines is a Nonrecoverable Advance), and a Responsible Officer of the
Trustee receives notice thereof, the Trustee shall notify such Master Servicer
of such failure and the Trustee shall make such Servicing Advance promptly, but
in any event, not later than six Business Days after notice thereof in
accordance with Section 4.2 (i.e., 5 Business Days after receipt of notice by
the Paying Agent pursuant to Section 4.2 that such Servicing Advance is required
to be made by the applicable Master Servicer, and one additional Business Day
after the delivery of notice to the applicable Master Servicer, as set forth
above, that such Master Servicer has not made the required Servicing Advance)
(or such shorter period as may be required to avoid a foreclosure of liens for
delinquent real estate taxes or a lapse in insurance coverage), unless the
Trustee determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance. If the Trustee determines that such advance would
constitute a Nonrecoverable Advance, then the Trustee shall deliver notice of
such determination to the applicable Special Servicer. Upon receipt of such
notice, the applicable Special Servicer shall determine (with the reasonable
assistance of the Trustee) whether the payment of such amount is (i) necessary
to preserve the related Mortgaged Property and (ii) would be in the best
interest of the Certificateholders. If such Special Servicer shall determine
that the payment of such amount is (i) necessary to preserve the related
Mortgaged Property and (ii) would be in the best interest of the
Certificateholders, then such Special Servicer shall promptly direct the Paying
Agent in writing to make such payment and the Paying Agent shall make such
payment within five Business Days after receipt of such notice (or such shorter
period as may be required to avoid a foreclosure of liens for delinquent real
estate taxes or a lapse in insurance coverage) from amounts in the Distribution
Account.
Section 4.4 Evidence of Nonrecoverability
If a Master Servicer or the applicable Special Servicer determines
at any time, in its sole discretion, exercised in accordance with the Servicing
Standard, 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 or the applicable
Special Servicer, the Paying Agent, the Operating Adviser and the Rating
Agencies (and the holder of a Serviced Companion Loan, if the Advance relates to
the related Serviced Loan Group) promptly upon making such determination, but in
no event later than the Business Day following the date of such determination.
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 applicable Special Servicer's
possession, any related financial information such as related income and expense
statements, rent rolls (with respect to mortgaged properties other than
residential cooperative properties), 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
applicable Special Servicer to determine that any P&I Advance or Servicing
Advance, as applicable, would be a Nonrecoverable Advance, any engineers'
reports, environmental surveys, internal final valuations or other information
relevant thereto which support such determination. If the Trustee determines at
any time, in its sole discretion, exercised in good faith, that any portion of
an Advance previously made or a portion of a proposed Advance that the Trustee
is required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the applicable Master Servicer, the applicable Special Servicer, the Paying
Agent and the Operating Adviser similar to the Officer's Certificate of a Master
Servicer or a Special Servicer described in the prior sentence. The Trustee
shall not be required to make an Advance that the applicable Master Servicer or
the applicable Special Servicer (or, with respect to a Serviced Loan Group, the
Other Master Servicer, if the related Serviced Companion Loan has been deposited
into an Other Securitization) has previously determined to be a Nonrecoverable
Advance. Notwithstanding any other provision of this Agreement, none of the
Master Servicers, the Special Servicers or the Trustee shall be obligated to,
nor shall it, make any Advance or make any payment that is designated in this
Agreement to be an Advance, if the Trustee determines in its good faith business
judgment and, with respect to the applicable Master Servicer or the applicable
Special Servicer, in accordance with the Servicing Standard, that such Advance
or such payment (including interest accrued thereon at the Advance Rate) would
be a Nonrecoverable Advance. Absent bad faith, the applicable Master Servicer's
determination as to the nonrecoverability of any Advance shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee; provided, however, that the applicable Special Servicer may, at its
option, make a determination in accordance with the Servicing Standard that any
P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and
shall deliver to the Master Servicer and the Trustee notice of such
determination; provided, further, however, the applicable Special Servicer shall
have no right to make an affirmative determination that any P&I Advance is or
would be recoverable and, in the absence of a determination by the applicable
Special Servicer that such Advance is or would be a Nonrecoverable Advance, the
decision that a P&I Advance is recoverable shall remain with the applicable
Master Servicer or Trustee, as applicable. Absent bad faith, such determination
by the applicable Special Servicer shall be conclusive and binding on the
Certificateholders, the Master Servicers and the Trustee. The applicable Master
Servicer shall consider Unliquidated Advances in respect of prior P&I Advances
and Servicing Advances as outstanding Advances for purposes of nonrecoverability
determinations as if such Unliquidated Advance were a P&I Advance or Servicing
Advance, as applicable.
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan
Any unreimbursed Advance funded from each Master Servicer's, each
Special Servicer's or the Trustee's own funds shall accrue interest on a daily
basis, at a per annum rate equal to the Advance Rate, from and including the
date such Advance was made to but not including the date on which such Advance
has been reimbursed; provided, however, that neither the Master Servicers 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 documents but shall be entitled to
interest on such Advance at the Advance Rate to the extent the Scheduled Payment
remains outstanding beyond the expiration of the grace period. In addition, no
Master Servicer shall be entitled to interest on any particular P&I Advance (or
portion thereof) made thereby to the extent a payment (or portion thereof) is
received but is being held by or on behalf of such Master Servicer in connection
with any dispute, claim or offset. For purposes of determining whether a P&I
Advance is outstanding, amounts collected with respect to a particular Mortgage
Loan or a particular 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 each Serviced Companion Loan) that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest incurred and unpaid
with respect to such Mortgage Loan arising on or after the Cut-Off Date. 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 Fees and default interest
that relates to the period commencing after the Servicing Transfer Event in
respect of a Specially Serviced Mortgage Loan, as to which the applicable
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 with respect to such Mortgage Loan exceed unreimbursed Advance
Interest with respect to such Mortgage Loan arising on or after the Cut-Off
Date. The applicable Special Servicer, with respect to any Specially Serviced
Mortgage Loan, shall (i) pay from any Late Fees and default interest collected
from such Specially Serviced Mortgage Loan (a) any outstanding and unpaid
Advance Interest payable with respect to such Specially Serviced Mortgage Loan
to the applicable Master Servicer, the applicable Special Servicer or the
Trustee, as applicable, and (b) to the Trust, any losses previously incurred by
the Trust with respect to such Specially Serviced Mortgage Loan (other than the
related Special Servicing Fees) and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation. It
is hereby acknowledged that the applicable Master Servicer may only waive Late
Fees and default interest to the extent set forth in Section 8.3(a).
Notwithstanding the foregoing, Late Fees and default interest received by the
applicable Master Servicer with respect to the Royal Airport Office Loan Group
shall be allocable among the applicable Master Servicer or applicable Special
Servicer, as the case may be, and the holder of the Royal Airport Office B Note
in accordance with the Royal Airport Office Co-Lender Agreement.
Section 4.6 Reimbursement of Advances and Advance Interest
(a) Advances made with respect to each Mortgage Loan, each Serviced
Companion Loan, each Specially Serviced Mortgage Loan or each 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, each Serviced Companion
Loan, 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 Loan, any Specially Serviced Mortgage Loans or any
REO Mortgage Loans, the Available Advance Reimbursement Amount with respect to
any Determination Date shall be applied to reimburse (i) the Trustee for any
Advances outstanding to the Trustee with respect to any of such Mortgage Loans,
any Serviced Companion Loan, any of such Specially Serviced Mortgage Loans or
REO Mortgage Loans, plus any Advance Interest owed to the Trustee with respect
to such Advances and then (ii) the applicable Master Servicer and applicable
Special Servicer for any Advances outstanding to such Master Servicer or such
Special Servicer, as the case may be, with respect to any of such Mortgage
Loans, any Serviced Companion Loan, any of such Specially Serviced Mortgage
Loans or REO Mortgage Loans, plus any Advance Interest owed to the applicable
Master Servicer or applicable Special Servicer with respect to such Advances. To
the extent that any Advance Interest payable to the applicable Master Servicer,
the applicable Special Servicer or the Trustee with respect to a Specially
Serviced Mortgage Loan or REO Mortgage Loan cannot be recovered from the related
Mortgagor, the amount of such Advance Interest shall be payable to the Trustee,
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, from amounts on deposit in the applicable Certificate Account (or
sub-account thereof) (or, if not available from such Certificate Account, the
other Certificate Account) or the Distribution Account pursuant to Section
5.2(a) or Section 5.3(b)(ii), to the extent of amounts identified to be applied
thereunder. The Master Servicers', the Special Servicers' and the Trustee's
right of reimbursement under this Agreement for Advances and interest thereon
shall be prior to the rights of the Certificateholders (and, in the case of a
Serviced Companion Loan, the holder of such Serviced Companion Loan) to receive
any amounts recovered with respect to such Mortgage Loans, Serviced Companion
Loans or REO Mortgage Loans.
(c) Advance Interest arising on or after the Cut-Off Date and not
previously paid with respect to any Mortgage Loan will be paid to the Trustee,
the applicable Special Servicer and/or the applicable Master Servicer (in
accordance with the priorities specified in the preceding paragraph) first, from
Late Fees and default interest collected with respect to such Mortgage Loan
during the Collection Period, 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 with respect to a Mortgage Loan will be offset against the
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-Off Date). Advance Interest payable to the General Master
Servicer, General Special Servicer or the Trustee in respect of Servicing
Advances on the Michigan Plaza Loan Group shall be allocated to the Michigan
Plaza Pari Passu Loan and the Michigan Plaza Companion Loan on a pro rata basis
based on their respective Principal Balances. Subject to the related Co-Lender
Agreement, Advance Interest on Servicing Advances payable to the General Master
Servicer, General Special Servicer or the Trustee, as applicable, in respect of
the Royal Airport Office Loan Group shall be allocated to the Royal Airport
Office B Note up to the Principal Balance thereof and then to the related
Mortgage Loan up to the principal balance thereof.
(d) To the extent that a 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, subject to Section 4.4, reimburse such Special Servicer for such
expenditures on the next succeeding Master Servicer Remittance Date, provided
such Special Servicer has delivered, on or before the related Determination
Date, an invoice and a report substantiating such expenses from such Special
Servicer requesting such reimbursement. All such amounts paid by a Special
Servicer and reimbursed by the applicable Master Servicer shall be a Servicing
Advance. In the event that the applicable Master Servicer fails to reimburse
such Special Servicer hereunder or the applicable Master Servicer determines
that such Servicing Advance was or, if made, would be a Nonrecoverable Advance
and the applicable Master Servicer does not make such payment, such Special
Servicer shall notify the applicable Master Servicer and the Paying Agent in
writing of such nonpayment and the amount payable to such Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The applicable Master Servicer, the Paying Agent and the Trustee shall
have no obligation to verify the amount payable to such Special Servicer
pursuant to this Section 4.6(d) and circumstances surrounding the notice
delivered by such Special Servicer pursuant to this Section 4.6(d).
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 "Xxxxx Fargo Bank, N.A., as General Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11"
and "NCB, FSB, as NCB Master Servicer for LaSalle Bank National Association, as
Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11" (collectively, or individually, as
the case may be the "Certificate Account"). The General Master Servicer shall
maintain the Certificate Account with respect to all of the Mortgage Loans
(other than the NCB, FSB Loans and the NCCB Loan) and the NCB Master Servicer
shall maintain the Certificate Account with respect to the NCB, FSB Loans and
the NCCB Loan. On or prior to the Closing Date, each Master Servicer shall open,
or cause to be opened, and shall maintain, or cause to be maintained an
additional separate account or accounts in the name of "Xxxxx Fargo Bank, N.A.,
as General Master Servicer for LaSalle Bank National Association, as Trustee for
the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11" and "NCB, FSB, as NCB Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11"
(collectively, or individually, as the case may be, the "Interest Reserve
Account"). The General Master Servicer shall maintain the Interest Reserve
Accounts with respect to non-NCB, FSB Loans and non-NCCB Loans and the NCB
Master Servicer shall maintain the Interest Reserve Accounts with respect to the
NCB, FSB Loans and the NCCB Loan.
(b) On or prior to the date a Master Servicer shall initially
deposit funds in a Certificate Account or an Interest Reserve Account, as the
case may be, 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. The
Master Servicers shall take such actions as are necessary to cause any
depository institution holding a Certificate Account and an Interest Reserve
Account to hold such accounts in the name of the applicable Master Servicer as
provided in Section 5.1(a), subject to such Master Servicer's (or its Primary
Servicer's or its Sub-Servicer's) right to direct payments and investments and
its rights of withdrawal under this Agreement.
(c) The applicable Master Servicer shall deposit, or cause to be
deposited, into its Certificate Account on the Business Day following receipt
(or, in the case of the UCMFI Mortgage Loans, within 2 Business Days, and 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 such Master
Servicer by the applicable Special Servicer from the applicable REO Account
pursuant to Section 9.14 and amounts received from the Primary Servicers or
Sub-Servicers), other than amounts received by it in respect of interest and
principal on the Mortgage Loans or Serviced Companion Loans due on or before the
Cut-Off Date which shall be remitted to the applicable Seller (provided that
such Master Servicer (I) may retain amounts otherwise payable to such Master
Servicer as provided in Section 5.2(a) rather than deposit them into such
Certificate Account, (II) shall, rather than deposit them in the Certificate
Account, directly remit to the Primary Servicers the applicable Primary
Servicing Fees payable as provided in Section 5.2(a)(iv) (unless already
retained by the applicable Primary Servicer), and (III) shall, rather than
deposit them in a 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 and the
Serviced Companion Loans;
(B) Interest: all payments on account of interest on the Mortgage
Loans and Serviced Companion Loans (including Excess Interest, which shall
be payable only to the Class EI Certificateholders, in each case as
provided herein, and excluding Interest Reserve Amounts to be deposited in
the applicable Interest Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to
the Mortgage Loans and the Serviced Companion Loans;
(D) Insurance Proceeds: all Insurance Proceeds other than proceeds
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the related Mortgagor in accordance with
the Servicing Standard, which proceeds shall be deposited by such Master
Servicer into the applicable Escrow Account and not deposited in the
Certificate Accounts;
(E) Condemnation Proceeds: all Condemnation Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor in
accordance with the Servicing Standard, which proceeds shall be deposited
by such Master Servicer into the applicable Escrow Account and not
deposited in the Certificate Accounts;
(F) REO Income: all REO Income received from the applicable Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by such
Master Servicer pursuant to Section 5.1(e) in connection with losses
realized on Eligible Investments with respect to funds held in the
Certificate Accounts and amounts required to be deposited by the
applicable Special Servicer pursuant to Section 9.14(b) in connection with
losses realized on Eligible Investments with respect to funds held in the
REO Accounts;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest received with
respect to the Mortgage Loans; and
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Accounts pursuant to this
Agreement, including, but not limited to, Purchase Proceeds of any
Mortgage Loans repurchased by a Seller or the maker of a representation
and warranty with respect to any Mortgage Loan or substitution shortfall
amounts (as described in the ninth paragraph of Section 2.3(a)) paid by a
Seller in connection with the substitution of any Qualifying Substitute
Mortgage Loans, any payments or recoveries in respect of Unliquidated
Advances or in respect of Nonrecoverable Advances paid from principal
collections on the Mortgage Loans pursuant to Section 5.2(a)(II) and, with
respect to the Royal Airport Office B Note, all other amounts received
pursuant to the cure and purchase rights or reimbursement obligations set
forth in the related Co-Lender Agreement.
With respect to each Serviced Loan Group, the Master Servicer shall
establish and maintain a sub account of the Certificate Account for each
Serviced Companion Loan (the "Serviced Companion Loan Custodial Account") into
which the Master Servicer shall deposit any amounts described above that are
required to be paid to the holder of such Serviced Companion Loan pursuant to
the terms of the related Co-Lender Agreement, in each case on the same day as
the deposit thereof into the Certificate Account. Each Serviced Companion Loan
Custodial Account shall be held in trust for the benefit of the holder of the
Serviced Companion Loan and shall not be part of any REMIC Pool.
Remittances from any REO Accounts to the applicable Master Servicer
for deposit in the applicable Certificate Accounts shall be made by the
applicable Special Servicer no later than the Special Servicer Remittance Date.
(d) The applicable Master Servicer, with respect to each
Distribution Date occurring in January (other than in any leap year) and
February of each year (unless such Distribution Date is the Final Distribution
Date), shall deposit in the applicable Interest Reserve Account in respect of
each related Interest Reserve Loan, an amount equal to one day's interest at the
related REMIC I Net Mortgage Rate, as applicable (without regard to the provisos
in the definition of Adjusted Mortgage Rate), 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").
(e) Funds in the Certificate Accounts (including the Serviced
Companion Loan Custodial Account) and Interest Reserve Accounts may be invested
and, if invested, shall be invested by, and at the risk of, the Master Servicer
in Eligible Investments selected by such Master Servicer which shall mature,
unless payable on demand, not later than the Business Day immediately preceding
the next Master Servicer Remittance Date, and any such Eligible Investment shall
not be sold or disposed of prior to its maturity unless payable on demand. All
such Eligible Investments shall be made in the name of "LaSalle Bank National
Association, as Trustee for the Holders of the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11 and the holder
of each Serviced Companion Loan, as their interests may appear." None of the
Depositor, the Mortgagors, the Paying Agent or the Trustee shall be liable for
any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the 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 credited to the Serviced Companion Loan
Custodial Account, deposit to the Serviced Companion Loan Custodial Account) or
applicable Interest Reserve Account, as the case may be, out of its own funds
immediately as realized. No Master Servicer shall be liable for any losses
incurred in respect of any account which is not controlled by such Master
Servicer or any losses with respect to a default on an Eligible Investment. If
the applicable Master Servicer deposits in or transfers to any Certificate
Account, the Serviced Companion Loan Custodial Account or any 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 such Certificate Account, such Serviced Companion Loan Custodial
Account or such Interest Reserve Account, as the case may be, any provision
herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if a Master Servicer shall have deposited
in the applicable Certificate Account, the Serviced Companion Loan Custodial
Account or applicable Interest Reserve Account, as the case may be, 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 such 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. The applicable Master Servicer
shall deal with these amounts in accordance with the Servicing Standard, the
terms of the related Mortgage Loans and Section 8.3(e) hereof, and the Primary
Servicers will hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3(e). No
Master Servicer shall release any Escrow Amounts held for "earn-outs" or
performance criteria listed on Schedule XI hereof, without the prior consent of
the Operating Adviser, which consent shall not be unreasonably withheld or
delayed. 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 VIII hereto,
a brief statement as to the status of the work or project based on the most
recent information provided by the related Mortgagor. Schedule VIII sets forth
those Mortgage Loans as to which an upfront reserve was collected at the closing
of such Mortgage Loan (and still exists) 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 applicable Special Servicer (which shall itself consult with
the Operating Adviser) will consult with each other as to whether there exists a
material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XII, 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, subject to Section 4.4, the applicable
Master Servicer shall, unless the Scheduled Payment is received before the end
of the Collection Period, make a P&I Advance by deposit to the Certificate
Account on the Master Servicer Remittance Date in an amount equal to the
Scheduled Payment or the Assumed Scheduled Payment, as applicable, and for
purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount," such Scheduled Payment or Assumed Scheduled Payment, as
applicable, shall be deemed to have been received in such Collection Period.
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Accounts
(a) Subsection (I). Each Master Servicer shall, from time to time,
make withdrawals from the applicable Certificate Accounts and remit them by wire
transfer prior to 2:00 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 (x) to such account as each shall determine from time to
time of amounts payable to the applicable Master Servicer from the applicable
Certificate Account (or, insofar as they relate to a Serviced Companion Loan,
from the Serviced Companion Loan Custodial Account) pursuant to clauses (i),
(ii), (iii), (iv), (vi), (viii) and (ix) below; (y) to the account specified in
writing by the Paying Agent from time to time of amounts payable to the Paying
Agent and the Trustee from the applicable Certificate Account (or, insofar as
they relate to a Serviced Companion Loan, from the Serviced Companion Loan
Custodial Account) pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and
(xiii) below; provided that if the Master Servicer fails to make any remittance
required by this Subsection (I) to the Paying Agent for deposit in the
Distribution Account on the Master Servicer Remittance Date pursuant to clause
(iii) or (xi) below, the Master Servicer shall pay (from its own funds without
right of reimbursement therefor) to the Paying Agent, for the account of the
Paying Agent, interest on any amount not timely remitted at the Advance Rate
from and including the day the remittance was required to be made to, but not
including, the day on which such remittance is actually made, and,
(notwithstanding any contrary provision of Section 8.28) if such remittance and
payment of interest are made not later than 11:00 a.m. (Eastern time) on the
related Distribution Date, then, insofar as the failure to make such remittance
otherwise constitutes an Event of Default on the part of the Master Servicer,
then such Event of Default shall thereupon be deemed to have been cured; and (z)
to the applicable Special Servicer from time to time of amounts payable to such
Special Servicer from the applicable Certificate Account (or, insofar as they
relate to a Serviced Companion Loan, from the Serviced Companion 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 General Master Servicer shall pay (A) to itself Late
Fees (in excess of amounts used to pay Advance Interest) relating to
Mortgage Loans (or Serviced Companion Loans) (other than NCB, FSB Loans or
the NCCB Loan) which are not Specially Serviced Mortgage Loans, 50% of any
Modification Fees relating to Mortgage Loans (or Serviced Companion Loans)
which are not Specially Serviced Mortgage Loans, 50% of assumption
application fees relating to Mortgage Loans (or Serviced Companion Loans)
that are not Specially Serviced Mortgage Loans, 50% of any assumption fees
relating to Mortgage Loans (or Serviced Companion Loans) which are not
Specially Serviced Mortgage Loans, 100% of any extension fees payable to
the General Master Servicer under Section 8.10 or other fees payable to
the General Master Servicer hereunder; provided that any such fees
described in (A) hereof shall be divided between such Master Servicer and
any related Primary Servicer as set forth in the applicable Primary
Servicing Agreement and (B) directly to the General Special Servicer, 50%
of any assumption fees, assumption application fees, modification fees and
related charges on Mortgage Loans (or Serviced Companion Loans) (other
than NCB, FSB Loans or NCCB Loan) which are not Specially Serviced
Mortgage Loans and, to the extent deposited into a Certificate Account,
all assumption fees (including assumption application fees) relating to
Specially Serviced Mortgage Loans and, to the extent provided in Section
9.11(c), Late Fees, Modification Fees, extension fees and other fees
collected on Specially Serviced Mortgage Loans, in each case to the extent
provided for herein from funds paid by or on behalf of the applicable
Mortgagor and, to the extent provided in Section 9.11(c), default interest
(in excess of Advance Interest arising only from that particular Specially
Serviced Mortgage Loan for which the Late Fees or default interest were
collected).
The NCB Master Servicer shall pay (A) to itself Late Fees (in excess
of amounts used to pay Advance Interest) relating to NCB, FSB Loans which are
not Specially Serviced Mortgage Loans and the NCCB Loan if it is not a Specially
Serviced Mortgage Loan, 100% of any Modification Fees relating to NCB, FSB Loans
which are not Specially Serviced Mortgage Loans and the NCCB Loan if it is not a
Specially Serviced Mortgage Loan, 100% of assumption application fees relating
to NCB, FSB Loans that are not Specially Serviced Mortgage Loans and the NCCB
Loan, if it is not a Specially Serviced Mortgage Loan, 50% of any assumption
fees relating to NCB, FSB Loans that are not Specially Serviced Mortgage Loans
and the NCCB Loan, if it is not a Specially Serviced Mortgage Loan, 100% of any
extension fees payable to such Master Servicer under Section 8.10 or other fees
payable to the NCB Master Servicer hereunder; and (B) directly to the applicable
Special Servicer, 50% of any assumption fees on NCB, FSB Loans that are not
Specially Serviced Mortgage Loans and the NCCB Loan, if it is not a Specially
Serviced Mortgage Loan and, to the extent deposited into a Certificate Account,
all assumption fees (including assumption application fees) relating to
Specially Serviced Mortgage Loans and, to the extent provided in Section
9.11(c), Late Fees, Modification Fees and other fees collected on Specially
Serviced Mortgage Loans, in each case to the extent provided for herein from
funds paid by or on behalf of the applicable Mortgagor and, to the extent
provided in Section 9.11(c), default interest (in excess of Advance Interest
arising only from that particular Specially Serviced Mortgage Loan for which the
Late Fees or default interest were collected);
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): in the case of all Mortgage Loans and the
Serviced Companion Loans, subject to subsection (iv) of Section 5.2(a)(II)
below, to reimburse or pay to the Master Servicers, the Special Servicers
and the Trustee, pursuant to Section 4.6, (x) prior to a Final Recovery
Determination or determination in accordance with Section 4.4 that any
Servicing Advance is a Nonrecoverable Advance, Servicing Advances on the
related Mortgage Loan (or Serviced Companion Loan) from payments made by
or on behalf of the related Mortgagor of the amounts to which a Servicing
Advance relates or from REO Income from the related REO Property or from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or
Purchase Proceeds and, to the extent that a Servicing Advance has been or
is being reimbursed, any related Advance Interest thereon first, from Late
Fees and default interest collected during the Collection Period, and then
from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the applicable Certificate Account (or, if not
available from such Certificate Account, the other 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 paid with respect
to each Mortgage Loan or a Serviced Companion Loan, will be offset against
the Advance Interest incurred and unpaid with respect to the particular
Mortgage Loan or Serviced Companion Loan, as applicable, on or after the
Cut-Off Date), to the payment of Advance Interest incurred on or after the
Cut-Off Date and unpaid on all Advances on such Mortgage Loan; provided,
further, that if both the General Master Servicer and the General Special
Servicer have outstanding Servicing Advances at the same time, because the
General Master Servicer did not reimburse the General Special Servicer for
such Servicing Advance as provided in Section 4.3 hereof, and amounts on
deposit in the Certificate Account are not sufficient to reimburse both
such Servicing Advances with interest thereon, then such Servicing Advance
with respect to the subject Mortgage Loan (or Serviced Companion Loan)
made by the General Special Servicer shall be reimbursed first until paid
in full or (y) after a Final Recovery Determination or determination that
any Servicing Advance on the related Mortgage Loan or Serviced Companion
Loan is a Nonrecoverable Advance, any Servicing Advances made on the
related Mortgage Loan, Serviced Companion Loan or REO Property, as
applicable, from any funds on deposit in the applicable Certificate
Account (or, if not available from such Certificate Account, the other
Certificate Account) (regardless of whether such amount was recovered from
the applicable Mortgage Loan, Serviced Companion Loan or REO Property) and
pay Advance Interest thereon first, from Late Fees and default interest
collected during the Collection Period (applying such Late Fees and
default interest on a "loan by loan basis" to the payment of Advance
Interest incurred and unpaid on all Advances on such Mortgage Loan or
Serviced Companion Loan, as applicable, arising on or after the Cut-Off
Date), then from Excess Liquidation Proceeds then available and then from
any other amounts on deposit in the applicable Certificate Account
(notwithstanding anything herein to the contrary each Master Servicer
shall reimburse itself or such other party pursuant to Section 4.4(b));
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): in the case of the Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to each
Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to
a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related
Mortgage Loan and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees
and default interest collected during the Collection Period and allocable
to such Mortgage Loan, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other 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 paid with respect to each Mortgage Loan will be
offset against the Advance Interest incurred and unpaid with respect to
the particular Mortgage Loan on or after the Cut-Off Date) 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, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account) (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any
Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period allocable to such Mortgage Loan
(applying such Late Fees and default interest on a "loan-by-loan basis,"
to the payment of Advance Interest incurred and unpaid on all Advances on
such Mortgage Loan incurred on or after the Cut-Off Date), then from
Excess Liquidation Proceeds then available and then from any other amounts
on deposit in the applicable Certificate Account (or, if not available
from such Certificate Account, the other 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 Servicers the Special Servicing Fee and
the Work-Out Fee and, if applicable, to pay to the Primary Servicers (or
the General Master Servicer) the Primary Servicing Fees and to pay to the
parties entitled thereto the Excess Servicing Fees (to the extent not
previously retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for withdrawal
by the Trustee, 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: to pay to the Special Servicers from the
applicable Certificate Accounts, the amount certified by each 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
Accounts (including the Serviced Companion Loan Custodial Account);
(ix) Prepayment Interest Excesses: to pay to the Master Servicers
the aggregate Prepayment Interest Excesses relating to the Mortgage Loans
for which they act as Master Servicer 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 Master Servicers the
aggregate Prepayment Interest Excesses relating to the Specially Serviced
Mortgage Loans for which they act as Master Servicer, 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 Specially
Serviced Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Accounts in error;
(xi) Distribution Account: other than amounts held for payment in
future periods or pursuant to clause (xii) below, to make payment on each
Master Servicer Remittance Date of the remaining amounts in the applicable
Certificate Accounts (excluding Excess Interest and Excess Liquidation
Proceeds) into the Distribution Account (or in the case of any Excess
Interest, deposit to the Excess Interest Sub-account);
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Accounts pursuant to Section 8.29;
provided, however, that in the case of a Serviced Companion Loan:
(A) the General Master Servicer shall be entitled to make transfers
from time to time, from the Serviced Companion Loan Custodial Account to
the portion of the Certificate Account that does not constitute the
Serviced Companion Loan Custodial Account, of amounts necessary for the
payments or reimbursement of amounts described in any one or more of
clauses (i), (ii), (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 a Serviced Loan Group and is allocable to the
related Serviced Companion Loan, and the General Master Servicer shall
also be entitled to make transfers from time to time, from the Serviced
Companion Loan Custodial Account to the portion of the Certificate Account
that does not constitute the Serviced Companion Loan Custodial Account, of
amounts transferred to the Serviced Companion Loan Custodial Account in
error, and amounts necessary for the clearing and termination of the
Certificate Account pursuant to Section 8.29; provided, however that the
General Master Servicer shall not be entitled to make transfers from the
portion of the Certificate Account that does not constitute the Serviced
Companion Loan Custodial Account (other than amounts previously
transferred from the Serviced Companion 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 General Master Servicer shall be entitled to make transfers
from time to time, from the Serviced Companion Loan Custodial Account to
the portion of the Certificate Account that does not constitute the
Serviced Companion Loan Custodial Account, of amounts not otherwise
described in clause (A) above to which the holder of the Michigan Plaza
Pari Passu Loan or Royal Airport Office Mortgage Loan is entitled under
the related Co-Lender Agreement (including in respect of interest,
principal and Prepayment Premiums); and
(C) the General Master Servicer shall, on either (x) the later of
(i) one (1) Business Day after the related Determination Date or (ii)
alternatively, but only if the Serviced Companion Loan is primary serviced
under a Primary Servicing Agreement, one (1) Business Day after receipt
from the Primary Servicer or (y) such other date as may be agreed to
between the General Master Servicer and the holder of such Serviced
Companion Loan (in their respective sole discretion), remit to the holder
of such Serviced Companion Loan all amounts on deposit in the Serviced
Companion 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 a Serviced Companion Loan is entitled
thereto under the related Co-Lender Agreement.
Expenses incurred with respect to each Serviced Loan Group shall be
allocated in accordance with the related Co-Lender Agreement. The General Master
Servicer shall keep and maintain a separate accounting for each Mortgage Loan
and the Serviced Companion Loans for the purpose of justifying any withdrawal or
transfer from the Certificate Account and the Serviced Companion Loan Custodial
Account, as applicable. If funds collected with respect to the Royal Airport
Office Mortgage Loan are insufficient to pay amounts due to the Trust as the
holder thereof (or to the parties to this Agreement) pursuant hereto, then the
Master Servicer shall, to the extent permitted by the related Co-Lender
Agreement, be entitled to withdraw the amount of such shortfall from collections
on, and other proceeds of, the Royal Airport Office B Note that are held in the
Serviced Companion Loan Custodial Account. The General Master Servicer shall not
be permitted to withdraw any funds from the portion of the Certificate Account
that does not constitute the Serviced Companion Loan Custodial Account with
respect to any liabilities, costs and expenses that are allocable to the
Serviced Companion Loan unless there are no remaining funds in the Serviced
Companion Loan Custodial Account that are available and required to be used to
pay such liability, cost or expense paid in accordance with the related
Co-Lender Agreement. If the applicable Master Servicer is entitled to make any
payment or reimbursement described above and such payment or reimbursement
relates solely to the Royal Airport Office B Note, but is not limited to a
specific source of funds (other than the requirement that it must be made by
withdrawal from the Serviced Companion Loan Custodial Account, insofar as it
relates to such B Note, and is permitted pursuant to the related Co-Lender
Agreement), the applicable Master Servicer shall, if funds on deposit in the
Serviced Companion Loan Custodial Account are insufficient therefor, request the
holder of such B Note to make such payment or reimbursement to the extent the
holder of such B Note is obligated to make such payment or reimbursement
pursuant to the related Co-Lender Agreement. If the holder of the Royal Airport
Office B Note fails to make such payment or reimbursement that it is obligated
to make within three Business Days following such request, the applicable Master
Servicer shall be entitled to make such payment or reimbursement from the
Certificate Account. If such payment or reimbursement is subsequently recovered
from the holder of such B Note to the extent that any amounts were previously
taken by the applicable Master Servicer from the Certificate Account, the amount
recovered shall be deposited into the Certificate Account and shall not be
deposited into the Serviced Companion Loan Custodial Account. To the extent that
amounts in the Serviced Companion Loan Custodial Account are not sufficient to
fully reimburse the General Master Servicer or the General Special Servicer for
any fees and expenses relating solely to a Serviced Companion Loan, the General
Master Servicer or the General Special Servicer, as applicable, shall be
entitled to seek reimbursement from the holder of the related Serviced Companion
Loan.
With respect to the Michigan Plaza Loan Group, to the extent that
the General Master Servicer, General Special Servicer or the Trustee is
reimbursed from general collections in the Certificate Account for
Nonrecoverable Advances or other fees, cost or expenses incurred with respect to
servicing the Michigan Plaza Loan Group, then the General Master Servicer shall
seek reimbursement from the holder of the Michigan Plaza Companion Loan for its
share of such amounts as contemplated by the Michigan Plaza Co-Lender 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 Master Servicer to abstain from reimbursing itself (or, if
applicable, the Trustee to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances in its sole
discretion. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the relevant
Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of the applicable Master Servicer's (or, if applicable, the
Trustee's) exercise of its sole discretion authorized by subsection (iv)
below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: Each
Master Servicer, each Special Servicer and the Trustee, as applicable,
shall be entitled to reimbursement and payment for all Workout-Delayed
Reimbursement Amounts in each Collection Period; provided, however, that
the aggregate amount (for all such Persons collectively) of such
reimbursements and payments in such Collection Period shall not exceed
(and the reimbursement and payment shall be made from) the aggregate
amounts in the Certificate Account allocable to principal 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 amounts in the Certificate Account
allocable to 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
amounts in the Certificate Account allocable to principal pursuant to the
preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to
Abstain from Reimbursements of Certain Nonrecoverable Advances: To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer, Special Servicer or Trustee to reimbursement for any
Nonrecoverable Advance (including Workout Delayed Reimbursement Amounts
that have been determined by a Master Servicer, Special Servicer or the
Trustee to be Nonrecoverable Advances) (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 principal collections and
recoveries on 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 principal collections on 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, and
(b) if and to the extent that the amount of such a Nonrecoverable Advance
(and Advance Interest thereon), together with all Nonrecoverable Advances
(and Advance Interest thereon) theretofore reimbursed during such
Collection Period, would exceed such principal collections and recoveries
on the Mortgage Loans for such Collection Period (and Advance Interest
thereon), the applicable Master Servicer (and the applicable Special
Servicer or the Trustee, as applicable, if it made the relevant Advance)
is hereby authorized (but shall not be construed to have any obligation
whatsoever), if it elects at its sole discretion (subject to the
requirement below that the applicable Master Servicer may not defer any
reimbursement for more than 6 Collection Periods without the consent of
the Operating Adviser), 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, however, that no deferment shall be
more than the amount by which the Nonrecoverable Advances (and Advance
Interest thereon) exceed the amount of principal on collection in the
Certificate Account. The applicable Master Servicer or applicable Special
Servicer, in considering whether an Advance is a Nonrecoverable Advance,
shall be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with
respect to other Mortgage Loans which, at the time of such consideration,
the reimbursement of which is being deferred or delayed by the applicable
Master Servicer, applicable Special Servicer or the Trustee because there
is insufficient principal available for such reimbursement, in light of
the fact that proceeds on the related Mortgage Loan are a source of
reimbursement not only for the P&I Advance or Servicing Advance under
consideration, but also as a potential source of reimbursement of such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is or
may be being deferred or delayed. In connection with a potential election
by the applicable Master Servicer, Special Servicer or Trustee to abstain
from the reimbursement of a particular Nonrecoverable Advance or portion
thereof during the Collection Period for any Distribution Date, the
applicable Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable) shall further be authorized to wait for principal
collections to be received before making its determination of whether to
abstain from the reimbursement of a particular Nonrecoverable Advance or
portion thereof until the end of the Collection Period. Notwithstanding
the foregoing, the applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) may defer the above reimbursement
for no more than 6 Collection Periods without the consent of the Operating
Adviser and, in any event, 12 Collection Periods in the aggregate. If the
applicable Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable), determines, in its sole discretion, that its
ability to fully recover the Nonrecoverable Advances has been compromised,
then the applicable Master Servicer (or the applicable Special Servicer or
the Trustee, as applicable) will be entitled to immediate reimbursement of
such Nonrecoverable Advance plus interest thereon at the Advance Rate. The
agreement of the applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) to defer reimbursement of such
Nonrecoverable Advances shall not be construed as an obligation on the
part of such applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable), or a right of the
Certificateholders. No such deferment shall be deemed to create in the
Certificateholders a right to prior payment of distributions over such
Master Servicer's, Special Servicer's or the Trustee's right to
reimbursement for Advances. Deferred Advances shall continue to earn
interest at the Advance Rate. In all events the decision to defer
reimbursement or seek immediate reimbursement of Nonrecoverable Advances
shall be deemed to be in accordance with the Servicing Standard.
None of the Master Servicers, the Special Servicers or the Trustee
shall have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection (II)(iv) or
to comply with the terms of this subsection (II)(iv) and the other provisions of
this Agreement that apply once such an election, if any, has been made.
Any election by a Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) to abstain from reimbursing itself for
any Nonrecoverable Advance (and Advance Interest thereon) or portion thereof
with respect to any Collection Period shall not be construed to impose on such
Master Servicer (or the applicable Special Servicer or the Trustee, as
applicable) any obligation to make such an election (or any entitlement in favor
of any Certificateholder or any other Person to such an election) with respect
to any subsequent Collection Period or to constitute a waiver or limitation on
the right of such Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable) to otherwise be reimbursed for such Nonrecoverable
Advance (and Advance Interest thereon). Any election by a Master Servicer, a
Special Servicer or the Trustee to abstain from reimbursing itself for any
Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of Advance Interest on the
unreimbursed portion of such Nonrecoverable Advance for the period prior to the
actual reimbursement of such Nonrecoverable Advance. None of the Master
Servicers, the Special Servicers, the Trustee or the other parties to this
Agreement shall have any liability to one another, to any of the
Certificateholders or to the holder of a Serviced Companion 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 Special
Servicers or the Trustee shall have the right to abstain from reimbursing itself
for any Nonrecoverable Advance to the extent of the amount described in clause
(I)(A) of the definition of Principal Distribution Amount.
To the extent that amounts in the Certificate Account allocable to
principal are not sufficient to fully reimburse any Nonrecoverable Advance (with
interest thereon) in any Collection Period and a Master Servicer, a Special
Servicer or the Trustee, as applicable, does not intend to exercise its sole
discretion to defer the reimbursement of such amounts to a subsequent Collection
Period, then the applicable Special Servicer, the applicable Master Servicer or
the Trustee, as applicable, shall give the Rating Agencies at least 15 days'
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Certificate Account allocable to interest on the Mortgage Loans unless
(1) the applicable Special Servicer, the applicable Master Servicer or the
Trustee, as applicable, determines in its sole discretion that waiting 15 days
after such a notice could jeopardize such Special Servicer's, such Master
Servicer's or the Trustee's, as applicable, ability to recover such
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the applicable Special Servicer, the applicable
Master Servicer or the Trustee, as applicable, that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the applicable Special Servicer or the applicable Master
Servicer, as applicable, has not timely received from the Trustee information
requested by the applicable Special Servicer or the applicable Master Servicer,
as applicable, to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
applicable Special Servicer, the applicable Master Servicer or the Trustee, as
applicable, shall give Rating Agencies notice of an anticipated reimbursement to
it of Nonrecoverable Advances from amounts in the Certificate Account allocable
to interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances.
(v) Reimbursement Rights of the Master Servicers, Special Servicers
and Trustee Are Senior: Nothing in this Agreement shall be deemed to
create in any Certificateholder a right to prior payment of distributions
over the applicable Master Servicer's, the applicable Special Servicer's
or the Trustee's right to reimbursement for Advances plus Advance Interest
(whether those that constitute Workout-Delayed Reimbursement Amounts,
those that have been the subject of the Master Servicer's election
authorized in subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the 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 (i) the Mortgage Loans
set forth on Schedule XII, for which a Scheduled Payment (including any Balloon
Payment) is due in a month on a Due Date (including any grace period) that is
scheduled to 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 such Scheduled
Payments (including any Balloon Payments) received after the end of such
Collection Period but no later than the Business Day immediately preceding such
Master Servicer Remittance Date on such Mortgage Loans set forth on Schedule
XII, and (ii) the Mortgage Loans set forth on Schedule XIII, for which a
voluntary Principal Prepayment is permitted on any day of the month without the
payment of a full month's interest, the applicable Master Servicer with respect
to such Principal Prepayment shall remit to the Trustee for deposit into the
Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments received after the end of such Collection
Period but no later than the Business Day immediately preceding such Master
Servicer Remittance Date on such Mortgage Loans set forth on Schedule XIII. In
connection with the deposit of any Scheduled Payments and Principal Prepayments
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 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 nor the Trustee
shall be liable or held responsible for any resulting delay or failure or any
claims or costs incurred in the making of such distribution to
Certificateholders. For purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," the Scheduled Payments and
Principal Prepayments referred to in the preceding proviso shall be deemed to
have been collected in the prior Collection Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2007 (or February, if the related Distribution Date is the
Final Distribution Date), each Master Servicer shall withdraw all related
amounts then in the applicable Interest Reserve Accounts and deposit such
amounts into the Distribution Account.
Section 5.3 Distribution Account, Excess Interest Sub-account and
Reserve Account
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii), on or prior to the date the Paying Agent determines is necessary)
and maintain in its name, on behalf of the Trustee, (i) an account (the
"Distribution Account"), which shall include a certain sub-account (the "Excess
Interest Sub-account") to be held in trust for the benefit of the Holders until
disbursed pursuant to the terms of this Agreement, titled: "LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-IQ11, Distribution Account" and (ii) an account (the "Reserve
Account") to be held in trust for the benefit of the holders of interests in the
Trust until disbursed pursuant to the terms of this Agreement, titled: "LaSalle
Bank National Association, as Trustee, in trust for the benefit of the Holders
of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-IQ11, Reserve Account." The Distribution Account and the Reserve
Account shall be Eligible Accounts. Funds in the Reserve Account shall not be
invested. The Distribution Account and the 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 Excess Interest Sub-account and the Reserve Account shall be
deemed sub-accounts of the Distribution Account.
Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee in trust for
the benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11." None of the Depositor, the
Mortgagors, the Special Servicers, the Master Servicers, the Primary 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, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, notwithstanding any provision herein to the
contrary.
(b) Except as set forth in the next succeeding sentences, the Paying
Agent shall deposit into the Distribution Account or the Reserve Account, as
applicable, on the Business Day received, all moneys remitted by the Master
Servicers pursuant to this Agreement, including P&I Advances made by the Master
Servicers and the Trustee, other than Excess Liquidation Proceeds, into the
Distribution Account and all Excess Liquidation Proceeds into the Reserve
Account. The Paying Agent shall deposit amounts constituting collections of
Excess Interest on the Mortgage Loans into the Excess Interest Sub-account.
Subject to Section 5.1(h), on any Master Servicer Remittance Date, none of the
Master Servicers shall have any duty to remit to the Distribution Account any
amounts other than amounts held in the applicable Certificate Accounts and
collected during the related Collection Period as provided in clauses (v) and
(xi) of Section 5.2(a) and the P&I Advance Amount, and, on the Master Servicer
Remittance Date occurring in March of any year, commencing in March 2007 (or
February, if the related Distribution Date is the Final Distribution Date),
related amounts held in the applicable Interest Reserve Accounts. 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 Primary
Servicers, the Special Servicers and the Trustee (including the Trustee's
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 Certificateholders pursuant to
Sections 6.5 and 6.11; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
Section 5.4 Paying Agent Reports
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicers and the Special
Servicers and delivered to the Paying Agent by such Master Servicers (no later
than 2:00 p.m., New York City time on the Report Date), the Paying Agent shall
make available to any interested party via its internet website initially
located at "xxx.xxxxxxxx.xxx" (the "Paying Agent's Website"), (i) the Monthly
Certificateholders Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File and the
CMSA Collateral Summary File, (iv) a CMSA Delinquent Loan Status Report, a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, a CMSA
Historical Liquidation Report, a CMSA Reconciliation of Funds Report, a CMSA REO
Status Report and an CMSA Loan Level Reserve/LOC Report, each containing
substantially the information contemplated in the definition of Unrestricted
Servicer Reports and (v) 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 Master Servicers and the
Special Servicers 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 July 2006). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder and any prospective Certificateholder or Certificate
Owner, each of the parties to this Agreement, each of the Rating Agencies, each
of the Underwriters, the Operating Adviser, the Placement Agent 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, any Placement Agent or any Underwriter. For
assistance with the above-mentioned Paying Agent services, Certificateholders or
any party hereto may initially call 000-000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicers or the Special Servicers 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 any Master Servicer, any Special Servicer, any Primary
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.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder (or the holder of a
Serviced Companion Loan) 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 the holder of a Serviced Companion Loan) such
reports and access to non privileged information and documentation regarding the
Mortgage Loans and the Certificates as such Certificateholder (or the holder of
a Serviced Companion Loan) 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 the holder of a Serviced Companion Loan) for the Paying
Agent's actual expenses incurred in providing such reports and access. The
holder of a Serviced Companion Loan shall be entitled to receive information and
documentation only with respect to the related Serviced Loan Group 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
Depositor, the Master Servicers, the Special Servicers, the Primary Servicers,
the Trustee, the Operating Adviser, any Certificateholder, prospective
Certificate Owner or any Person reasonably designated by any Placement Agent, or
any Underwriter upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney privileged records and
documentation regarding the applicable Mortgage Loans, REO Property and all
other relevant matters relating to this Agreement, and access to Responsible
Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicers, the Special Servicers, the Trustee, the
Operating Adviser, the 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, any Placement Agent, the
Underwriters, each Rating Agency, the Special Servicers, the Depositor and,
solely with respect to a Serviced Loan Group, the holder of the related Serviced
Companion Loan, originals or copies of, among other things, the following items:
(i) the most recent property inspection reports in the possession of the Trustee
in respect of each Mortgaged Property and REO Property, (ii) the most recent
Mortgaged Property/REO Property annual operating statement and rent roll (or in
the case of a residential cooperative property, the most recent maintenance
schedule), if any, collected or otherwise obtained by or on behalf of the Master
Servicers or the Special Servicers and delivered to the Paying Agent, and (iii)
any Phase I Environmental Report or engineering report prepared or appraisals
performed in respect of each Mortgaged Property; provided, however, that the
Paying Agent shall be permitted to require payment by the requesting party
(other than either Rating Agency or the Operating Adviser) of a sum sufficient
to cover the reasonable expenses actually incurred by the Paying Agent or the
Trustee of providing access or copies (including electronic or digital copies)
of any such information reasonably requested in accordance with the preceding
sentence.
Section 5.5 Paying Agent Tax Reports
The Paying Agent shall perform all reporting and other tax
compliance duties that are the responsibility of each REMIC Pool and the Class
EI Grantor Trust under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority,
as applicable. Consistent with this Pooling and Servicing Agreement, the Paying
Agent shall provide or cause to be provided (i) to the United States Department
of 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. 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 Class EI Grantor Trust as the Paying Agent may
reasonably request from time to time. Each Special Servicer is required to
provide to the applicable Master Servicers all information in its possession
with respect to the Specially Serviced Mortgage Loans and REO Property in order
for such Master Servicers 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 Servicers and shall have
no obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally
Subject to Section 10.2(a), respecting the final distribution on the
Certificates, on each Distribution Date, the Paying Agent shall (1) first,
withdraw from the Distribution Account and pay to the Trustee any unpaid fees,
expenses and other amounts then required to be paid pursuant to this Agreement,
and then, to the Paying Agent, any unpaid fees, expenses and other amounts then
required to be paid pursuant to this Agreement, and then at the written
direction of each Master Servicer, withdraw from the Distribution Account and
pay to such Master Servicers, the Primary Servicers and the Special Servicers
any unpaid servicing compensation or other amounts currently required to be paid
pursuant to this Agreement (to the extent not previously retained or withdrawn
by the Master Servicers from the applicable Certificate Accounts), 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 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 and the Class X-Y Certificates.
Section 6.2 REMIC I
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 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 (other than the Group X-Y REMIC I
Regular Interests), until the Certificate Balance thereof is reduced to
zero;
(iii) any remaining funds with respect to each Mortgage Loan or
related REO Property, to reimburse any Realized Losses previously
allocated to the REMIC I Regular Interests (other than the Group X-Y REMIC
I Regular Interests), plus interest on such Realized Losses at the related
REMIC I Net Mortgage Rate previously allocated thereto; and
(iv) thereafter, to the Class R-I Certificateholders, at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests
have been reduced to zero, and Realized Losses previously allocated
thereto have been reimbursed to the Holders of the REMIC I Regular
Interests, any amounts remaining with respect to each Mortgage Loan or
related REO Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II
On each Distribution Date, (i) 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; and (ii) all
distributions made in respect of the Class X Certificates on each Distribution
Date pursuant to Section 6.5 or Section 10.1, and allocable to any particular
Component of such Class of Certificates in accordance with the last paragraph of
Section 6.5(a), shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of such Component's Corresponding REMIC II Regular
Interest. All distributions made in respect of the Class X-Y Certificates on
each Distribution Date pursuant to Section 6.5 or Section 10.1 shall be deemed
distributed to REMIC II Regular Interest X-Y. All distributions of
reimbursements of Realized Losses made in respect of any Class of Principal
Balance Certificates on each Distribution Date pursuant to Section 6.5 shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
its Corresponding REMIC II Regular Interest set forth in the Preliminary
Statement hereto. Any amounts remaining in the Distribution Account with respect
to REMIC II on any Distribution Date after the foregoing distributions shall be
distributed to the holders of the Class R-II Certificates.
Section 6.4 Reserved
Section 6.5 REMIC III
(a) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the Available Distribution Amount
and shall distribute such amount (other than the amount attributable to Excess
Liquidation Proceeds which shall be distributed in accordance with Section
6.5(b) and the amount attributable to Excess Interest which shall be distributed
in accordance with Section 6.5(c) on the immediately preceding Master Servicer
Remittance Date pursuant to Section 8.31(b)) in the following amounts and order
of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class X Certificates and Class X-Y Certificates,
concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates and Class A-4 Certificates, the
Distributable Certificate Interest Amount in respect of 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 Amount
payable in respect of each such Class;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest Amount 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 Certificates and Class X-Y
Certificates, the Distributable Certificate Interest Amount in
respect of each such Class for such Distribution Date, pro rata in
proportion to the Distributable Certificate Interest Amount 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, Class X or Class X-Y Certificates on such
Distribution Date as described above, the Available Distribution
Amount will be allocated among the Class A Certificates, the Class X
Certificates and the Class X-Y Certificates, pro rata in proportion
to the respective amounts of interest payable thereon for such
Distribution Date, without regard to Loan Group;
(ii) (A) to the holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates,
(1) first, 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 has 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 2 Principal Distribution Amount distributed hereunder
will be reduced by any portion thereof distributed to the
Holders of the Class A-1A Certificates;
(2) second, upon payment in full of the aggregate
Certificate Balance of the Class A-1 Certificates, to the
Holders of the Class A-2 Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class A-2 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-1 Certificates and (solely with
respect to the Loan Group 2 Principal Distribution Amount)
Class A-1A Certificates;
(3) third, upon payment in full of the aggregate
Certificate Balance of the Class A-2 Certificates, to the
Holders of the Class A-3 Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has 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-1 Certificates, Class A-2
Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates;
(4) fourth, upon payment in full of the aggregate
Certificate Balance of the Class A-3 Certificates, to the
Holders of the Class A-4 Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class A-4 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-1 Certificates, Class A-2
Certificates, Class A-3 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 has
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-1
Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4 Certificates;
(iii) to the Holders of the Class A Certificates, Class X
Certificates and Class X-Y Certificates, pro rata (treating principal and
interest losses separately) in proportion to their respective entitlements
to reimbursement described in this clause, to reimburse any Realized
Losses or Expense Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through
Rate on such Realized Losses or Expense Losses;
(iv) to the Holders of the Class A-M Certificates, Distributable
Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the Class A
Certificates, to the Holders of the Class A-M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class A-M Certificates has been reduced to zero;
(vi) to the Holders of the Class A-M Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(vii) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Certificate Balance of the Class
A-M Certificates, to the Holders of the Class A-J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class A Certificates and Class A-M
Certificates hereunder), until the Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(ix) to the Holders of the Class A-J Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(x) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) 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 to Holders of Class A Certificates, Class A-M
Certificates and Class A-J Certificates hereunder), until the Certificate
Balance of the Class B Certificates has been reduced to zero;
(xii) to the Holders of the Class B Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xiii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates and Class B Certificates hereunder), until the
Certificate Balance of the Class C Certificates has been reduced to zero;
(xv) to the Holders of the Class C Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xvi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates and Class C Certificates
hereunder), until the Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xix) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates and
Class D Certificates hereunder), until the Certificate Balance of the
Class E Certificates has been reduced to zero;
(xxi) to the Holders of the Class E Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates and Class E Certificates hereunder), until the Certificate
Balance of the Class F Certificates has been reduced to zero;
(xxiv) to the Holders of the Class F Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxv) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates and Class F Certificates hereunder),
until the Certificate Balance of the Class G Certificates has been reduced
to zero;
(xxvii) to the Holders of the Class G Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxviii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxix) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates and Class G
Certificates hereunder), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxx) to the Holders of the Class H Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates and Class H Certificates hereunder), until the Certificate
Balance of the Class J Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class J Certificates, to reimburse
any Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxiv) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates hereunder),
until the Certificate Balance of the Class K Certificates has been reduced
to zero;
(xxxvi) to the Holders of the Class K Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxvii) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxviii) 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 to Holders of Class A Certificates, Class A-M
Certificates, Class A-J 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 and Class K Certificates hereunder), until the Certificate
Balance of the Class L Certificates has been reduced to zero;
(xxxix) to the Holders of the Class L Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xl) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xli) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J 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 and Class L Certificates hereunder), until the Certificate
Balance of the Class M Certificates has been reduced to zero;
(xlii) to the Holders of the Class M Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xliii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xliv) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J 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 and Class M Certificates hereunder),
until the Certificate Balance of the Class N Certificates has been reduced
to zero;
(xlv) to the Holders of the Class N Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlvi) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J 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 and Class N
Certificates hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlviii) to the Holders of the Class O Certificates, to reimburse
any Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlix) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) 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 to Holders of Class A Certificates, Class A-M Certificates,
Class A-J 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 and Class O Certificates hereunder), until the Certificate
Balance of the Class P Certificates has been reduced to zero;
(li) to the Holders of the Class P Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses; and
(lii) 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 Certificate
Balances of all the Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, 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; and
o second, to the Holders of the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates, pro rata, based on the respective amounts of
unreimbursed Realized Losses or Expense Losses previously allocated
to each such Class, plus one month's interest on such Realized
Losses or Expense Losses at the applicable Pass-Through Rate.
(b) On each Distribution Date, following the above-described
distributions on the Principal Balance Certificates and the Class X Certificates
and Class X-Y Certificates, the Paying Agent shall withdraw amounts in the
Reserve Account and shall pay the Certificateholders on such Distribution Date
such amounts in the following priority:
(i) first, from amounts in the Reserve Account with respect to all
Mortgage Loans, to reimburse the Holders of the Class A Certificates, the
Class X Certificates and the Class X-Y Certificates, pro rata, and then
the remaining amounts to reimburse the Principal Balance Certificates
(other than the Class A Certificates) (in order of alphabetical Class
designation, it being understood that the rights of the Holders of the
Class A-J Certificates to receive such distributions are subordinate to
those of the Holders of the Class A-M Certificates) for any, and to the
extent of, Realized Losses or Expense Losses previously allocated to them
and not previously fully reimbursed, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses or Expense Losses;
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 Servicers as
additional Special Servicer Compensation.
Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to
be applied to reimbursement of Realized Losses or Expense Losses previously
allocated to the REMIC II Regular Interests and the REMIC I Regular Interests in
the reverse sequential order and priority as such Realized Losses or Expense
Losses were applied thereto.
(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 distribute such Excess Interest on such Distribution Date to
the Class EI 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 Interests (and as between the related Group
X-Y REMIC I Regular Interest and Group PB REMIC I Regular Interest, pro
rata, based on Distributable Certificate Interest otherwise payable
thereon); and to the extent that such Realized Interest Loss exceeds such
amount, shall be treated as an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized during
the related Collection Period shall be allocated among the REMIC I Regular
Interests in proportion to their Certificate Balances or Notional Amounts
(and, as between the related Group X-Y REMIC I Regular Interest and Group
PB REMIC I Regular Interest, in proportion to Distributable Certificate
Interest or Unpaid Interest, as applicable) after making all other
allocations for such Distribution Date.
(b) In the event that a Master Servicer, a Special Servicer or the
Trustee determines that an Advance previously made by it (whether such Advance
(together with Advance Interest thereon) was in respect of principal or interest
on the related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance
and 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 or if the Master Servicer determines any Unliquidated Advance has
become a Nonrecoverable Advance), the applicable Master Servicer (after
consultation with the applicable Special Servicer) shall compute the Realized
Loss with respect to such Mortgage Loan (and the Paying Agent shall allocate the
Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate
amount in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount, and shall be allocated to the Corresponding
REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and to the
extent that any Realized Principal Loss exceeds the Certificate Balance of
the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal
would otherwise be paid on such Distribution Date, in proportion to such
principal payments; and
(ii) if the amount that the applicable Master Servicer withdraws
from the Certificate Account as referenced in clause (b)(i) above exceeds
such amounts allocable to principal for such Collection Period, then such
additional amounts shall constitute Unpaid Interest, and shall be
allocated to the REMIC I Regular Interests on a pro rata basis based upon
the amount of accrued and unpaid interest thereon.
(c) 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 previously made were
Nonrecoverable Advances and Realized Losses were computed and allocated pursuant
to clauses (a) and (b) above, and amounts are recovered:
(i) the portion of the amount of collections recovered on the
Mortgage Loan that is identified and applied by the applicable Master
Servicer as recoveries of principal shall be applied first, to make
payments of principal on the Corresponding REMIC I Regular Interest up to
an amount equal to the Realized Principal Losses previously allocated
thereto as a result of the reimbursement of Nonrecoverable Advances or
Advance Interest (and the Principal Balance of the Mortgage Loan and the
related Certificate Balance of the Corresponding REMIC I Regular Interest
shall be correspondingly increased), and thereafter to make payments of
principal to the Corresponding REMIC I Regular Interests with respect to
which principal distributions were reduced pursuant to Section 6.6(b)(i)
above, in proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan that
is identified and applied by the Master Servicer as recoveries of interest
shall be applied to make payments of Unpaid Interest on the REMIC I
Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the Corresponding Certificates relating thereto pursuant to
Section 6.6(f). Realized Interest Losses allocated to the Class X Certificates
shall reduce the amount of interest payable on the REMIC II Regular Interests
and shall be allocated pro rata based on the product of the Certificate Balance
of each REMIC II Regular Interest and the Class X Strip Rate (if any) applicable
to the Corresponding Component relating to such REMIC II Regular Interest.
(e) Reserved.
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the REMIC
Regular Certificates in Reverse Sequential Order, with such reductions being
allocated among the Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4
Certificates and, in the case of interest, Class X and Class X-Y Certificates,
pro rata, in each case reducing (A) the Certificate Balance of such Class until
such Certificate Balance is reduced to zero; (B) Unpaid Interest owing to such
Class to the extent thereof; and (C) Distributable Certificate Interest owing to
such Class, provided that Realized Losses shall not reduce the Aggregate
Certificate Balance of the REMIC Regular Certificates below the sum of the
Aggregate Certificate Balances of the REMIC II Regular Interests.
Section 6.7 Net Aggregate Prepayment Interest Shortfalls
On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in the Mortgage Loans in REMIC I (other than any Specially Designated
Co-op Mortgage Loan) 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 (without taking into account any
Class X-Y Interest Amount) and shall reduce Distributable Certificate Interest
for each such Interest. On each Distribution Date, any such Net Aggregate
Prepayment Interest Shortfalls in the REMIC I Regular Interests held by REMIC II
shall be allocated among the REMIC II Regular Interests (other than REMIC II
Regular Interest X-Y), pro rata in proportion to the Accrued Certificate
Interest for each such REMIC II Regular Interest for such Distribution Date
(without taking into account any Class X-Y Interest Amount) and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any such Net Aggregate Prepayment Interest Shortfalls on the
REMIC Regular Certificates shall be allocated to each Class of Certificates
(other than the Class X-Y Certificates), pro rata, in proportion to the amount
of Accrued Certificate Interest payable to such Class of Certificates on such
Distribution Date (without taking into account any Class X-Y Interest Amount),
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 (without taking into account
any Accrued Certificate Interest payable to the Holders of the Class X-Y
Certificates on such Distribution Date.) On each Distribution Date, any Net
Aggregate Prepayment Interest Shortfalls in respect of any Specially Designated
Co-op Mortgage Loan 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 such
Net Aggregate Prepayment Interest Shortfalls in the REMIC I Regular Interests
held by 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 REMIC II Regular Interest. On each
Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in the
REMIC Regular Certificates shall be allocated among the REMIC Regular
Certificates, pro rata in proportion to the Accrued Certificate Interest for
each Class of REMIC Regular Certificates for such Distribution Date and shall
reduce Distributable Certificate Interest for each Class of REMIC Regular
Certificates. No portion of any Net Aggregate Prepayment Interest Shortfalls for
any Distribution Date that is attributable to a Mortgage Loan that is not a
Specially Designated Co-op Mortgage Loan shall be allocable to or reduce
interest distributions on the Class X-Y Certificates.
Section 6.8 Adjustment of Servicing Fees
The Master Servicing Fee payable to each 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
applicable Special Servicer shall have obtained (A) an Appraisal of the
Mortgaged Property securing the related Mortgage Loan (or Serviced Loan Group)
if the Principal Balance of such Mortgage Loan (or Serviced Loan Group) exceeds
$2,000,000 or (B) at the option of the applicable Special Servicer, if such
Principal Balance is less than or equal to $2,000,000, either an internal
valuation prepared by such Special Servicer in accordance with MAI standards
(which internal valuation shall ascribe a value for any residential cooperative
property based on the value of such property as if operated as a residential
cooperative) or an Appraisal which in all cases shall be completed as of the
date that such Mortgage Loan (or Serviced Loan Group) 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, such
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 or prepare an internal valuation after receipt of the notice described
in clause (ii) of the definition of Appraisal Event, such Appraisal or internal
valuation will be obtained or prepared, as the case may be, no later than 60
days after receipt of such notice. With respect to each Mortgage Loan that is
cross-collateralized with any other Mortgage Loan, the Appraisal or internal
valuation need only be performed with respect to Mortgaged Properties that
constitute the principal security for the individual Mortgage Loan to which an
Appraisal Event occurs, and not with respect to all of the Mortgaged Properties
that constitute security for the individual Mortgage Loan in the
cross-collateralized group. Such Appraisal or valuation shall be conducted in
accordance with the definition of "market value" as set forth in 12 C.F.R. ss.
225.62 and shall be updated at least annually from the date of such Appraisal or
valuation, as applicable, to the extent such Mortgage Loan remains a Required
Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by
the applicable Special Servicer, shall be an expense of the Trust and may be
paid from REO Income or, to the extent collections from such related Mortgage
Loan (or Serviced Loan Group) 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 such Special Servicer pursuant to
Section 4.6 in which event it shall be treated as a Servicing Advance. The
applicable Special Servicer shall calculate any Appraisal Reduction. The
applicable Master Servicer shall recalculate the Appraisal Reduction for any
Mortgage Loan and Serviced Loan Group based on the original Appraisal or updated
Appraisals or internal valuations provided from time to time to it by the
applicable Special Servicer and report such amount to the Trustee. The
applicable Special Servicer shall provide notice of any Appraisal Event with
respect to a Mortgage Loan to the applicable Master Servicer and the Operating
Adviser on the day of determination of such Appraisal Event.
Appraisal Reductions allocated to any Mortgage Loan shall be
allocated to the Certificate Principal Balance of the related Classes of
Principal Balance Certificates in the order of their subordination, i.e., in
Reverse Sequential Order.
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, giving effect to all
applicable exemptions from withholding as to which the recipient has furnished
the applicable and effective certification or other documentation. The consent
of Certificateholders shall not be required for any such withholding and any
amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Paying Agent
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Paying Agent shall indicate to such
Certificateholder the amount withheld. The Trustee shall not be responsible for
the Paying Agent's failure to comply with any withholding requirements.
Section 6.11 Prepayment Premiums and Yield Maintenance Charges
On any Distribution Date prior to and including the Distribution
Date on which the Certificate Balance of the Class A Senior Certificates has
been reduced to zero, Prepayment Premiums or Yield Maintenance Charges collected
with respect to a Mortgage Loan in a particular Loan Group during any particular
Collection Period will be distributed by the Paying Agent on the Classes of
Certificates as follows: (i) first, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the Group PB REMIC I Regular Interest to
which such Mortgage Loan relates, any Prepayment Premiums collected on or with
respect to such Mortgage Loan in that Loan Group on that Distribution Date; and
(ii) second, the Paying Agent shall be deemed to distribute to the Trustee, as
holder of the REMIC II Regular Interests, any Prepayment Premiums deemed
distributed to the REMIC I Regular Interests, and shall be deemed to distribute
such Prepayment Premiums to the REMIC II Regular Interest then entitled to
distributions of principal from the Principal Distribution Amount (or, if more
than one Class of REMIC II Regular Interests is then entitled to distributions
of principal from the Principal Distribution Amount, such Prepayment Premiums
shall be deemed distributed among such Classes pro rata in accordance with the
relevant amounts of entitlements to distributions of principal).
Following such deemed distributions, the Holders of the respective
Classes of Principal Balance Certificates (other than the Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates) then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Paying Agent on behalf of the
Trustee will pay to such Holder(s), an amount equal to, in the case of each such
Class, the product of (a) a fraction, the numerator of which is the amount
distributed as principal to the Holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
Holders of all Classes of Principal Balance Certificates on that Distribution
Date, (b) the Base Interest Fraction for the related Principal Prepayment and
that Class of Certificates and (c) the amount of Prepayment Premiums or Yield
Maintenance Charges in respect of such principal prepayment during the related
Collection Period. If there is more than one such Class of Principal Balance
Certificates entitled to distributions of principal on such Distribution Date,
the aggregate amount described in the preceding sentence will be allocated among
such Classes on a pro rata basis in accordance with the relative amounts of
entitlement to such distributions of principal. Any portion of such Prepayment
Premium or Yield Maintenance Charge that is not so distributed to the Holders of
such Principal Balance Certificates will be distributed to the Holders of the
Class X Certificates.
Notwithstanding the foregoing, Yield Maintenance Charges collected
during any Collection Period with respect to any Specially Designated Co-op
Mortgage Loan will be distributed, on a pro rata basis, to the REMIC Regular
Certificates as follows: (a) if the amount of such Yield Maintenance Charges
exceeds any applicable Yield Maintenance Minimum Amount, (x) the amount of such
Yield Maintenance Charges that would have been payable with respect to such
Specially Designated Co-op Mortgage Loan if the related Mortgage Rate was equal
to the related REMIC I Net Mortgage Rate with respect to such Mortgage Loan
(calculated without regard to any Yield Maintenance Minimum Amount) will be
distributed as set forth above, and (y) the amount of such Yield Maintenance
Charges actually payable during such Collection Period in excess of the amount
to be distributed pursuant to clause (x) will be distributed to the Holders of
the Class X-Y Certificates; (b) if the amount of such Yield Maintenance Charges
equals any applicable Yield Maintenance Minimum Amount, such Yield Maintenance
Charges shall be distributed as follows: (x) 50% to the Holders of the Class
A-1, Class A-1A, Class A-2, Class A-3 Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class X Certificates,
allocable among such Classes as set forth in the paragraphs above, and (y) 50%
to the Holders of the Class X-Y Certificates; and (c) notwithstanding the
foregoing, Prepayment Premiums collected during any Collection Period with
respect to any Specially Designated Co-op Mortgage Loan shall be distributed as
follows: (a) 50% to the Holders of the Class A-1, Class A-1A Class A-2, Class
A-3, Class A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H and Class X Certificates, allocable among such Classes as
set forth in the paragraph above, and (b) 50% to the Holders of the Class X-Y
Certificates.
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Paying Agent. The Trustee shall exercise such of the rights and powers
vested in it by this Agreement and following the occurrence and during the
continuation of any Event of Default hereunder, the Trustee shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Paying Agent, as the case
may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicers or
any other Person to it pursuant to this Agreement. If any such instrument is
found on its face not to conform to the requirements of this Agreement, the
Trustee or the Paying Agent shall request the providing party to correct the
instrument and if not so corrected, the Trustee shall inform the
Certificateholders.
(c) None of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Persons shall have any liability to the Trust
or the Certificateholders arising out of or in connection with this Agreement,
except for their respective negligence or willful misconduct. No provision of
this Agreement shall be construed to relieve the Trustee, the Paying Agent or
any of their respective partners, representatives, Affiliates, members,
managers, 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) none of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall be personally
liable with respect to any action taken, suffered or omitted to be taken
by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not
less than a majority of the outstanding Certificate Balance of the
Certificates;
(ii) no provision of this Agreement shall require either the Trustee
or the Paying Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) none of the Trustee, the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of any Master Servicer, any Special
Servicer, the Depositor or any Seller, or for the acts or omissions of
each other, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms
or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) neither the Trustee nor the Paying Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Paying Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust and the Trustee
and the Paying Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Paying Agent shall be charged with
knowledge of any failure by any Master Servicer, any Special Servicer or
by each other to comply with its obligations under this Agreement or any
act, failure, or breach of any Person upon the occurrence of which the
Trustee or the Paying Agent may be required to act, unless a Responsible
Officer of the Trustee or the Paying Agent, as the case may be, obtains
actual knowledge of such failure.
Section 7.2 Certain Matters Affecting the Trustee and the Paying
Agent
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and may rely
and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee and the Paying Agent each may consult with counsel
and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) none of the Trustee, the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable for any action taken, suffered or omitted by such Person
in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
(provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least 25% of the Aggregate Certificate
Balance of the Certificates then outstanding, provided that, if the
payment within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in connection with the foregoing is, in the opinion of such Person not
reasonably assured to such Person by the security afforded to it by the
terms of this Agreement, such Person may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expenses of the Trustee or the
Paying Agent, as applicable, shall be paid by the Certificateholders
requesting such examination;
(v) the Trustee and the Paying Agent each may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have
any or all of the rights, powers, duties and obligations of the Trustee
and the Paying Agent conferred on them by such appointment; provided that
each of the Trustee and the Paying Agent, as the case may be, shall
continue to be responsible for its duties and obligations hereunder and
shall not be liable for the actions or omissions of any Master Servicer,
any Special Servicer, the Depositor or the actions or omissions of each
other;
(vi) neither the Trustee nor the Paying Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Paying Agent shall be required to
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) neither the Trustee nor the Paying Agent shall be liable for
any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee nor the Paying Agent shall be required to post any surety or bond
of any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither the Trustee nor the Paying
Agent shall be responsible for any act or omission of any Master Servicer,
any Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only 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.
(f) If, in connection with any Distribution Date, the Trustee or
Paying Agent has reported to the Depository the anticipated amount of the
distribution to be made to the Depository on such Distribution Date and the
timing of the receipt from a Master Servicer of any Principal Prepayment or
Balloon Payment requires modification of such anticipated amount of the
distribution to be made to the Depository, the Trustee or Paying Agent will use
commercially reasonable efforts to cause the Depository to revise the amount of
the distribution on a timely basis so that such Principal Prepayments or Balloon
Payments will be included in the Available Distribution Amount for such
Distribution Date. None of the Trustee, the Paying Agent, the Master Servicers
and the Special Servicers will be liable or held responsible for any resulting
delay (or claims by the Depository resulting therefrom) in the making of such
distribution to Certificateholders.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans
The Trustee and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC Regular Certificates or
Residual Certificates (other than the Certificate of Authentication on the
Certificates if the Paying Agent is the Authenticating Agent) or of any Mortgage
Loan, Assignment of Mortgage or related document save that (i) each of the
Trustee and the Paying Agent represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. Neither the Trustee nor the Paying Agent shall be
accountable for the use or application by the Depositor or any Master Servicer
or any 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 any Master Servicer or any 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 the Paying Agent to the extent of information furnished by
the Trustee and the Paying Agent under, with respect to the Preliminary
Prospectus Supplement, the information contained therein under the headings
"SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties and Dates--Trustee" (only
with respect to the first sentence thereunder), "SUMMARY OF FREE WRITING
PROSPECTUS--Relevant Parties and Dates--Paying Agent" (only with respect to the
first sentence thereunder), "TRANSACTION PARTIES--The Trustee--General" (with
respect to the first paragraph and the third through the seventh paragraphs) and
"TRANSACTION PARTIES--The Paying Agent, Certificate Registrar and Authenticating
Agent," and with respect to the Final Prospectus Supplement (including the Final
Prospectus Supplement as included as Exhibit A to the Private Placement
Memorandum), the information contained therein under the headings "SUMMARY OF
PROSPECTUS SUPPLEMENT--Relevant Parties and Dates--Trustee" (only with respect
to the first sentence thereunder), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder), "TRANSACTION PARTIES--The Trustee General" (with respect to the
first paragraph and the third through the seventh paragraphs) and "TRANSACTION
PARTIES--The Paying Agent, Certificate Registrar and Authenticating Agent"), the
Mortgage Loans or the assignment thereof against the Trustee or the Paying Agent
in such Person's individual capacity and any such claim shall be asserted solely
against the Trust or any indemnitor who shall furnish indemnity as provided
herein. None of the Trustee or the Paying Agent shall be liable for any action
or failure of any action by the Depositor or any Master Servicer or any Special
Servicer or by each other hereunder. None of Trustee or 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 any Master Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or any Master Servicer or any 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 any Master Servicer or any Special Servicer or any loss
resulting therefrom; the failure of any Master Servicer or any Sub-Servicer or
any 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
any Master Servicer or any Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own Certificates
Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association organized and doing business under the laws of the United States of
America and any state thereof, 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" (without regard to plus or minus) by S&P and "F-1" by Fitch and whose
long term senior unsecured debt is at all times rated not less than "AA-" by
Fitch and "A+" by S&P. If such corporation, national bank or national banking
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.6.
Notwithstanding the foregoing, if the Trustee meets the provisions of this
Section 7.5, but does not meet the provisions of (iii) above, the Trustee shall
be deemed to meet the provisions of (iii) if it appoints a fiscal agent as a
back-up liquidity provider; provided that such fiscal agent shall meet the
requirements of Section 7.5(iii) above and Section 7.18 herein.
The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by S&P and Fitch, unless and to the extent Rating Agency
Confirmation is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicers, the Special 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 or paying
agent, as the case may be. If no successor trustee or paying agent shall have
been so appointed, as the case may be, and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or the Paying Agent, as the case may be, may petition any court of
competent jurisdiction for the appointment of a successor trustee or paying
agent, as the case may be. It shall be a condition to the appointment of a
successor trustee that such entity satisfies the eligibility requirements set
forth in Section 7.5.
(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) if the Trustee fails to perform (or acts
with negligence, bad faith or willful misconduct in performing) any of its
obligations set forth in Article XIII (other than the failure to file any
Exchange Act report due to the non-receipt of the Exchange Act reportable
information from the applicable Master Servicer or applicable Special Servicer),
then the Depositor shall send a written notice of termination to the Trustee
(which notice shall specify the reason for such termination) and remove such
Trustee and the Depositor shall 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. Such succession shall take effect after a
successor trustee has been appointed and has accepted such appointment. In the
case of the removal of the initial Trustee, the Depositor shall also remove the
Paying Agent.
(c) If at any time (i) the Paying Agent 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 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), (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 any Rating Agency, (v) if the Paying Agent shall fail (other than by reason
of a Master Servicer's or Special Servicer's failure to timely perform its
obligations hereunder), to timely publish any report to be delivered, published
or otherwise made available by the Paying Agent pursuant to Sections 5.4 and 5.5
and such failure shall continue unremedied for a period of five days, (vi) if
the Paying Agent should fail to make distributions required pursuant to Section
5.3, Section 10.1 or Article VI or (vii) if the Paying Agent fails to perform
(or acts with negligence, bad faith or willful misconduct in performing) any of
its obligations set forth in Article XIII, 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 Special Servicers and the Rating Agencies.
(d) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may, without cause, at any time
upon written notice to the Trustee or the Paying Agent, as the case may be, and
to the Depositor remove the Trustee or the Paying Agent, as the case may be, by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Paying Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
the Paying Agent, as the case may be, in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Paying Agent,
as the case may be, and appointment of a successor trustee or paying agent
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or paying agent, as the case
may be, as provided in Section 7.7. Upon any succession of the Trustee or the
Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as
the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
Section 7.7 Successor Trustee or Paying Agent
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein, as the case may be. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Paying Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee or Paying Agent that has resigned or been removed or
terminated, as contemplated by Section 7.6, to a successor Trustee or Paying
Agent, including those associated with transfer of the Mortgage Files and other
documents and statements held by the predecessor Trustee or Paying Agent to the
successor Trustee or Paying Agent, as contemplated by Section 7.6(a), shall be
paid by: (i) the predecessor Trustee or Paying Agent, if such predecessor
Trustee or Paying Agent has resigned in accordance with Section 7.6(a) or has
been removed in accordance with Sections 7.6(b) or 7.6(c), as applicable; (ii)
the Certificateholders that effected the removal, if the predecessor Trustee or
Paying Agent has been removed without cause in accordance with Section 7.6(d);
and (iii) the Trust, if such costs and expenses are not paid by the predecessor
Trustee or Paying Agent or the subject Certificateholders, as contemplated by
the immediately preceding clauses (i) and (ii), within 90 days after they are
incurred (provided that such predecessor Trustee or predecessor Paying Agent or
such subject Certificateholders, as applicable, shall remain liable to the Trust
for such costs and expenses).
Section 7.8 Merger or Consolidation of Trustee or Paying Agent
Any Person into which the Trustee or Paying Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Trustee or Paying Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that 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.
Notwithstanding the foregoing, neither the Trustee nor the Paying
Agent may remain the Trustee or the Paying Agent, as the case may be, under this
Agreement after (x) being merged or consolidated with or into any Person that is
a Prohibited Party, or (y) transferring all or substantially all of its assets
to any Person if such Person is a Prohibited Party, except to the extent (i) the
Trustee or Paying Agent, as the case may be, is the surviving entity of such
merger, consolidation or transfer or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
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 any Master Servicer or any Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees, co
trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further, that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(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.
(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 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 the Trustee and the Paying Agent
(a) The Trustee (whether in its individual capacity or in its
capacity as Trustee), the Certificate Registrar, the Paying Agent and each of
its respective partners, representatives, Affiliates, members, managers,
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 Mortgage Loans, 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 any
Master Servicer, any Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
and each of their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any unanticipated loss,
liability or expense incurred in connection with the provision by the Trustee,
the Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the applicable Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, such Master
Servicer, the Sellers, each other and the Holders of Certificates shall
not affect the Trustee's, Certificate Registrar's or Paying Agent's, as
the case may be, rights to indemnification herein unless the Depositor's
defense of such claim on behalf of the Trust is materially prejudiced
thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may
be, entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee, the Certificate Registrar or the Paying Agent, as the case
may be, their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, 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
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus in reliance upon and in conformity with written information
concerning the Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, furnished to the Depositor by or on behalf of such Person
specifically for inclusion therein. It is hereby expressly agreed that the only
written information provided by the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, for inclusion in the Preliminary Prospectus
Supplement and Final Prospectus Supplement is set forth, with respect to the
Preliminary Prospectus Supplement, under the headings "SUMMARY OF FREE WRITING
PROSPECTUS--Relevant Parties and Dates--Trustee" (only with respect to the first
sentence thereunder), "SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties and
Dates--Paying Agent" (only with respect to the first sentence thereunder),
"TRANSACTION PARTIES--The Trustee General" (with respect to the first paragraph
and the third through the seventh paragraphs) and "TRANSACTION PARTIES--The
Paying Agent, Certificate Registrar and Authenticating Agent," and, with respect
to the Final Prospectus Supplement, under the headings "SUMMARY OF PROSPECTUS
SUPPLEMENT--Relevant Parties and Dates--Trustee" (only with respect to the first
sentence thereunder), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant Parties and
Dates--Paying Agent" (only with respect to the first sentence thereunder),
"TRANSACTION PARTIES--The Trustee General" (with respect to the first paragraph
and the third through the seventh paragraphs) and "TRANSACTION PARTIES--The
Paying Agent, Certificate Registrar and Authenticating Agent"). The Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, shall immediately
notify the Depositor and the Sellers if a claim is made by a third party with
respect to this Section 7.11(c) entitling such Person, its partners,
representatives, Affiliates, members, managers, directors, officers, employees,
agents or Controlling Person to indemnification hereunder, whereupon the
Depositor shall assume the defense of any such claim (with counsel reasonably
satisfactory to such Person) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person may have to indemnification under this
Section 7.11(c), unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Trustee or
the Paying Agent. The Depositor shall not be indemnified by the Trust for any
expenses incurred by the Depositor arising from any violation or alleged
violation of the 1933 Act or 1934 Act by the Depositor.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent
The Trustee shall be entitled to receive the Trustee Fee, pursuant
to Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Paying Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
other Persons not regularly in its employ), not including expenses incurred in
the ordinary course of performing its duties as Trustee or Paying Agent,
respectively, hereunder, and except any such expense, disbursement or advance as
may arise from the negligence or bad faith of such Person or which is the
responsibility of the Holders of the Certificates hereunder. The provisions of
this Section 7.12 shall survive any termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent.
Section 7.13 Collection of Moneys
Except as otherwise expressly provided in this Agreement, the
Trustee and the Paying Agent may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee or the Paying Agent, as the case may be, pursuant to this Agreement.
The Trustee or the Paying Agent, as the case may be, shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee or the Paying Agent, as the case may
be, shall not have timely received amounts to be remitted with respect to the
Mortgage Loans from the applicable Master Servicer, the Trustee or the Paying
Agent, as the case may be, shall request that the applicable Master Servicer
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 in accordance with Sections 8.28 and 8.29, 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 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), except any
ongoing obligations to the Primary Servicers arising after the termination of
such Master Servicer from their servicing rights and obligations under the
applicable Primary Servicing 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 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 such terminated Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as the
applicable Master Servicer hereunder and under the applicable Primary Servicing
Agreement. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that such Affiliate
must meet the standards for the Master Servicer as set forth herein. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated 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 terminated 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 terminated Master Servicer
as provided herein; such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
(c) On and after the time a Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to such Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Special Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by such 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
such Special Servicer contained in this Agreement or (ii) any obligation
incurred by such 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 such Special Servicer in this Agreement. As
compensation therefor, the Trustee shall, subject to Section 9.21(d), be
entitled to receive all the compensation payable to such Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation.
(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 terminated Special Servicer hereunder in the
assumption of all of the responsibilities, duties or liabilities of a Special
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity 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, subject to
Section 9.21(d), 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 terminated 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 terminated Special
Servicer shall cooperate with the Trustee and any successor Special Servicer in
effecting the termination of such 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 such 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 terminated Special Servicer in the
applicable Certificate Account and any other account or fund maintained with
respect to the Certificates or thereafter be received by such 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 terminated 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 such
Special Servicer. The Trustee shall be reimbursed for all of its out-of-pocket
expenses incurred in connection with obtaining such successor Special Servicer
by the Trust within 30 days of submission of an invoice with respect thereto but
only to the extent such expenses have not been reimbursed by the terminated
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 a Special
Servicer, or appointment of a successor to such Master Servicer, the Paying
Agent or such Special Servicer, the Trustee shall promptly mail notice thereof
by first class mail to the Rating Agencies, the Operating Adviser, the Sellers
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
Section 7.16 Representations and Warranties of the Trustee and the
Paying Agent
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or
result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties that would materially and
adversely affect the Trustee's ability to perform its obligations under
this Agreement, (ii) the organizational documents of the Trustee, or (iii)
the terms of any material agreement or instrument to which the Trustee is
a party or by which it is bound; the Trustee is not in default with
respect to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental agency,
which default would materially and adversely affect its performance under
this Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Trustee to
perform under the terms of this Agreement.
(b) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of
the Paying Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Paying Agent or its properties that would materially
and adversely affect the Paying Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Paying
Agent, or (iii) the terms of any material agreement or instrument to which
the Paying Agent is a party or by which it is bound; the Paying Agent is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to or the registration with any state,
federal or other governmental authority or agency, except such as has been
or will be obtained, given, effected or taken in order for the Paying
Agent to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Paying Agent, enforceable against the Paying Agent in accordance with
its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question
the validity of this Agreement, or which would be likely to impair
materially the ability of the Paying Agent to perform under the terms of
this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent
Each of the Trustee and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount customary for
trustees or paying agents in similar transactions (unless the Trustee or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee or the Paying Agent, as the case may be, is
not less than "A" as rated by S&P and Fitch, if rated by S&P and Fitch,
respectively, the Trustee or the Paying Agent, as the case may be, may
self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Appointment of a Fiscal Agent
(a) In order to satisfy the eligibility requirements of Section 7.5
(insofar as such requirements relate to ratings), the Trustee may appoint a
fiscal agent (a "Fiscal Agent"). Any Fiscal Agent shall at all times maintain a
long-term unsecured debt rating of no less than "AA-" from Fitch (or "A+" from
Fitch, if such Fiscal Agent's short-term unsecured debt rating is at least "F-1"
by Fitch) and a long-term unsecured debt rating of no less than "AA-" from S&P
(or "A+" from S&P, if such Fiscal Agent's short-term unsecured debt rating is at
least "A-1" by S&P) (or, in the case of either Rating Agency, such other rating
as shall not result in a downgrade, qualification or withdrawal of the rating by
the Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes
an Advance pursuant to this Section 7.18(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust, the Depositor, the Master Servicers or the
Special Servicers.
(d) The obligations of a Fiscal Agent set forth in this Section 7.18
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 7.5; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 7.5). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
7.18(a) or (ii) the Trustee shall have received written confirmation from the
Rating Agencies that the succession of such proposed successor fiscal agent
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the rating by the Rating Agencies of any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the holders of any Serviced Companion Loan in writing of
the appointment, resignation or removal of any Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole
(and, solely as it relates to a Serviced Loan Group, for the benefit of the
holder of the related Serviced Companion Loan), the Master Servicers shall
service and administer the Mortgage Loans (and the General Master Servicer shall
also service each Serviced Companion Loan) in accordance with the Servicing
Standard and the terms of this Agreement. The General Master Servicer shall be
the Master Servicer with respect to all the Mortgage Loans (other than the NCB,
FSB Loans and the NCCB Loan), the Serviced Companion Loans and other assets in
the Trust (other than the NCB, FSB Trust Assets) and, as such, shall service and
administer such assets as shall be required of the Master Servicer hereunder
with respect to such Trust assets. The NCB Master Servicer shall be the Master
Servicer with respect to the NCB, FSB Trust Assets and, as such, shall service
and administer the NCB, FSB Trust Assets as shall be required of such Master
Servicer hereunder with respect to the NCB, FSB Trust Assets. Certain of the
provisions of this Article VIII make explicit reference to their applicability
to Mortgage Loans and Serviced Companion Loans; notwithstanding such explicit
references, references to "Mortgage Loans" contained in this Article VIII,
unless otherwise specified, shall be construed to refer also to the related
Serviced Companion 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, each Master
Servicer shall service in accordance with the Servicing Standard; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the applicable Master Servicer of the collectibility 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.
(b) The applicable Master Servicer, in the case of an event
specified in clause (x) of this subclause (b), and the applicable 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, the respective Seller and, in the case of a
Serviced Loan Group, the holder of the related Serviced Companion 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 any of the applicable Master Servicer, the applicable Special
Servicer or the applicable Primary Servicer has actual knowledge of any event
giving rise to a claim under an Environmental Insurance Policy, such Person
shall notify the related Master Servicer, the related Special Servicer and the
related Primary Servicer, as applicable, 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
applicable Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan that is the subject of an Environmental Insurance Policy, 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 Companion Loan
is subject to the terms and conditions of the related Co-Lender Agreement. With
respect to the Michigan Plaza Pari Passu Loan, the Trustee, the General Master
Servicer and the General Special Servicer recognize the respective rights and
obligations of the Trust and the holders of the Michigan Plaza Companion Loan
under the Michigan Plaza Co-Lender Agreement, including, with respect to the
allocation of collections on or in respect of the Michigan Plaza Pari Passu Loan
and the Michigan Plaza Companion Loan in accordance with the Michigan Plaza
Co-Lender Agreement. With respect to the Royal Airport Office Mortgage Loan, the
Trustee, the General Master Servicer and the General Special Servicer recognize
the respective rights and obligations of the Trust and the holders of the Royal
Airport Office B Note under the Royal Airport Office Co-Lender Agreement,
including, with respect to the allocation of collections on or in respect of the
Royal Airport Office Mortgage Loan and the Royal Airport Office B Note in
accordance with the Royal Airport Office Co-Lender Agreement. The General Master
Servicer shall comply with the applicable provisions of each Co-Lender
Agreement, and, if any loan in a Serviced Loan Group becomes a Specially
Serviced Mortgage Loan, the General Special Servicer shall comply with the
applicable provisions of the related Co-Lender Agreement. The parties hereto
agree that any conflict between the terms of this Agreement and the terms of a
Co-Lender Agreement shall be resolved in favor of such Co-Lender Agreement.
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers
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 a 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 a Master Servicer (or its
corporate parent) is not in any event less than "A" as rated by S&P and Fitch,
respectively, such Master Servicer may self insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicers' General Power and Duties
(a) Each Master Servicer shall service and administer the Mortgage
Loans it is required to service hereunder and shall, subject to the terms,
conditions and limitations set forth in Sections 8.19, 8.27, 9.39, 14.1, 14.2
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. In addition, subject to Section 14.2 hereof, each
Master Servicer, consistent with the Servicing Standard, may waive any default
interest and Late Fees with respect to its Mortgage Loans (or a Serviced
Companion Loan to the extent such default interest and Late Fees are not
required to be used to offset interest on advances of the Other Master Servicer
for any P&I Advance made by such Other Master Servicer under the Other Pooling
and Servicing Agreement, if such Serviced Companion Loan is deposited into an
Other Securitization) that are not Specially Serviced Mortgage Loans; provided
that, to the extent the applicable Master Servicer waives any default interest
and Late Fees, any outstanding Advance Interest with respect to the related
Mortgage Loan (or Serviced Companion Loan, as applicable) that would otherwise
have been paid out of such default interest and Late Fees shall be paid out of
the additional servicing compensation payable to such Master Servicer with
respect to that Mortgage Loan (or Serviced Companion Loan, as applicable); and
provided, further, that if no additional servicing compensation is available to
offset the outstanding Advance Interest with respect to the Mortgage Loan (or
Serviced Companion Loan) that would otherwise be offset by the default interest
and Late Fees, then the applicable Master Servicer shall not waive such default
interest and Late Fees unless it is the first such waiver with respect to the
subject Mortgage Loan (or Serviced Companion Loan, as applicable).
Notwithstanding the above, and subject to the restrictions set forth
in Section 14.2 hereof, the Master Servicers shall have no power to (i) waive
any Prepayment Premiums or (ii) consent to any modification of a Money Term. In
addition, subject to the Servicing Standard, the Master Servicers shall not
accept any prepayment of principal with respect to any Mortgage Loan on any date
other than the related Due Date unless (i) such payment is accompanied by a
payment of the interest due with respect to such Mortgage Loan up to the next
succeeding Due Date, (ii) such prepayment does not result in the Trust incurring
a Prepayment Interest Shortfall or (iii) such prepayment is required to be
permitted under the related Mortgage Loan documents on a date other than the
related Due Date. Nothing contained in this Agreement shall limit the ability of
the Master Servicers to lend money to (to the extent not secured, in whole or in
part, by any Mortgaged Property, except for a Co-op Mortgage Loan as to which
the NCB, FSB Subordinate Debt Conditions have been satisfied in which case a
subordinate loan may be secured by a mortgage lien on the related Mortgaged
Property), accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though the Master Servicer were not a
party to this Agreement or to the transactions contemplated hereby; provided,
however, that this sentence shall not modify the Servicing Standard.
(b) No Master Servicer shall 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. Such 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 applicable 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. Each Master
Servicer shall give notice within one Business Day to the applicable Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by such Special Servicer
and such Master Servicer. Each 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
applicable Special Servicer's instructions. Each Mortgage Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan
becomes a Rehabilitated Mortgage Loan. No Master Servicer shall be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Powers of Attorney attached hereto as Exhibit S-1A and Exhibit
S-1B. The Master Servicers, shall promptly notify the Trustee of the recording
of any document on behalf of the Trustee under such Power-of-Attorney. From time
to time until the termination of the Trust, upon receipt of additional
unexecuted powers of attorney from the Master Servicers or the Special
Servicers, the Trustee shall execute and return to any Master Servicer, any
Special Servicer or any Primary Servicer any additional powers of attorney and
other documents necessary or appropriate to enable such Master Servicer and such
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. Each 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 a Master Servicer. Notwithstanding
anything contained herein to the contrary, neither the Master Servicers nor the
Special Servicers shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding directly relating to the servicing of the Mortgage
Loans solely under the Trustee's name without indicating the Master Servicer's
or Special Servicer's, as applicable, representative capacity, (ii) initiate any
other action, suit or proceeding not directly relating to the servicing of the
Mortgage Loans (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Sellers for breaches
of representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of the Mortgage Loans (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Sellers for breaches of representations and warranties), or
(iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other actions with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state. 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) Each 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) Each Master Servicer (or any Primary Servicer on its behalf)
shall segregate and hold all funds collected and received pursuant to any
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 Business Day after receipt. Each Escrow Account
(other than with respect to the capital improvements escrows related to the Mass
Mutual Loans) shall be an Eligible Account except with respect to Mortgage Loans
identified on Schedule VII for which Escrow Accounts shall be transferred to
Eligible Accounts at the earliest date permitted under the related Mortgage Loan
documents. The General Master Servicer and Trustee acknowledge that the Escrow
Accounts for capital improvements, with respect to the Mass Mutual Loans, are
not held in Eligible Accounts, and are not required to be deposited in Eligible
Accounts under the related Mortgage Loan Documents. Each Master Servicer shall
also deposit into each applicable Escrow Account any amounts representing losses
on Eligible Investments pursuant to the immediately succeeding paragraph and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow Amounts
for the related Mortgage Loan;
(ii) to transfer funds to the applicable 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 applicable 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 two sentences, (i) each Master
Servicer may direct any depository institution or trust company in which the
applicable 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 applicable Escrow Account was established; (ii) each Master Servicer shall
be entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) each 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 on or before the next Master
Servicer Remittance Date. The Master Servicers shall not direct the investment
of funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law permit the
Mortgagor to be entitled to the income and gain realized from the investment of
funds deposited therein, and the Master Servicers shall not be required to
invest amounts on deposit in applicable Escrow Accounts in Eligible Investments
or Eligible Accounts to the extent that the Master Servicers are 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 a 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, the Master Servicers
shall have no obligation to, but may be entitled to, direct the investment of
such funds; provided, however, that in either event (i) such funds shall be
either (y) immediately available or (z) available in accordance with a schedule
which will permit the Master Servicers to meet the payment obligations for which
the applicable Escrow Account was established, and (ii) the Master Servicers
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
Servicers 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 or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The 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 defeasance collateral consists of "government securities" as
defined in the 1940 Act, subject to Rating Agency approval, (ii) such Master
Servicer has received evidence satisfactory to it, 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 (in its corporate capacity and not
as agent of or on behalf of the Trust or the Trustee), (iv) such Master Servicer
has requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of the ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) such Master Servicer shall receive a Rating Agency
Confirmation 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 (or such
higher threshold as shall be published by S&P), unless such Rating Agency has
waived in writing 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), either a Notice and Certification in the form attached hereto as Exhibit Z
(or such less restrictive form as shall be adopted by S&P) or a Rating Agency
Confirmation is received from S&P and (vi) a Rating Agency Confirmation is
received if the Mortgage Loan is one of the ten largest Mortgage Loans, by
Principal Balance. Any customary and reasonable out-of-pocket expense incurred
by the 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 a Seller shall have breached
the representation set forth under the heading "Releases of Mortgaged Property"
in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations
of a Mortgagor to pay the costs of a tax opinion associated with the full or
partial release or substitution of collateral for a Mortgage Loan because the
related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, to the extent an amount is due and not paid by the
Mortgagor, then the sole obligation of the related Seller shall be to pay for
such tax opinion. In addition, the parties hereto acknowledge that, if a Seller
shall have breached the representation set forth under the heading "Defeasance
and Assumption Costs" in 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 or assumption of the related Mortgage Loan, because
the related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, including, but not limited to, amounts owed to one or
both Rating Agencies, 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 expenses or costs, the applicable Master Servicer
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The related Seller shall have no obligation to
pay for any of the foregoing costs if the applicable Mortgagor has an obligation
to pay for such costs.
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 applicable 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 applicable Special
Servicer will process the defeasance of such Specially Serviced Mortgage Loan,
and such Special Servicer shall be entitled to any fees paid relating to such
defeasance.
(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 thirty (30) days after
receipt of the related Servicer Mortgage File by such Master Servicer (or
Primary Servicer, if applicable), the Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement, and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to such Master Servicer (as
evidenced by delivery of a copy thereof to such Master Servicer). Such Master
Servicer shall promptly notify the ground lessor if the Seller has failed to do
so by the thirtieth day after the Closing Date.
(j) Pursuant to the Michigan Plaza Co-Lender Agreement, the owner of
the Michigan Plaza Companion Loan has agreed that the General Master Servicer
and the General Special Servicer are authorized and obligated to service and
administer the Michigan Plaza Companion Loan pursuant to this Agreement.
(k) Pursuant to the Royal Airport Office Co-Lender Agreement, with
respect to the Royal Airport Office Loan Group, the holder of Royal Airport
Office B Note has agreed that the General Master Servicer and the General
Special Servicer are authorized and obligated to service and administer the
Royal Airport Office B Note pursuant to this Agreement, but subject,
nevertheless, to the terms and provisions of the Royal Airport Office Co-Lender
Agreement. The General Master Servicer shall be entitled, during any period when
the Royal Airport Office Loan Group does not constitute a Specially Serviced
Mortgage Loan, to exercise the rights and powers granted under the Royal Airport
Office Co-Lender Agreement to the "Note A Lender" and/or the "Master Servicer"
or the "Servicer" (as the context requires) referred to therein, subject to the
limitations of the Royal Airport Office Co-Lender Agreement. For the avoidance
of doubt, the parties acknowledge that neither the General Master Servicer nor
the General Special Servicer shall be entitled or required to exercise the
rights and powers granted to the "Note B Lender" as defined under the related
Co-Lender Agreement. Nothing in this Section 8.3(k) shall be construed to add to
or expand the responsibilities and duties of any Master Servicer or Special
Servicer as expressly set forth in this Agreement and the Royal Airport Office
Co-Lender Agreement with respect to the Royal Airport Office B Note. To the
extent of any conflicts between the provisions of this Agreement with respect to
the servicing and administration of the Royal Airport Office B Note and the
provisions of the related Co-Lender Agreement, the provisions of the Royal
Airport Office Co-Lender Agreement shall control.
Section 8.4 Primary Servicing and Sub-Servicing
(a) The parties hereto (A) acknowledge that the General Master
Servicer has delegated certain of its obligations and assigned certain of its
rights under this Agreement to each of the Primary Servicers pursuant to the
respective Primary Servicing Agreements and the IXIS Sub-Servicer pursuant to
the IXIS Sub-Servicing Agreement and (B) agree: (1) in addition to those
obligations specifically delegated by the General Master Servicer to the Primary
Servicers under the applicable Primary Servicing Agreement and the IXIS
Sub-Servicer under the IXIS Sub-Servicing Agreement, each Primary Servicer and
(if so provided in the related Sub-Servicing Agreement) each Sub-Servicer shall
also perform the General Master Servicer's obligations set forth in Section
2.1(d) of this Agreement as such Section relates to the Mortgage Loans serviced
by it; (2) in addition to those rights specifically granted by the General
Master Servicer to the Primary Servicers under the applicable Primary Servicing
Agreement or any Sub-Servicer under the applicable Sub-Servicing Agreement,
those rights set forth in Section 8.24 hereof accruing to the benefit of the
General Master Servicer shall also accrue to the benefit of the Primary
Servicers and each Sub-Servicer; (3) any indemnification or release from
liability set forth in this Agreement accruing to the benefit of the General
Master Servicer shall also, to the extent applicable, benefit the Primary
Servicers and each Sub-Servicer; and (4) for each notice, certification, report,
schedule, statement or other type of writing that a party hereto is obligated to
deliver to the General Master Servicer in respect of Mortgage Loans for which a
Primary Servicer or Sub-Servicer has been engaged, such party shall deliver to
each of the applicable Primary Servicers or the applicable Sub-Servicer a copy
of such notice, certification, report, schedule, statement or other type of
writing at the time and in the same manner that any of the foregoing is required
to be delivered to the General Master Servicer.
Notwithstanding the provisions of any Primary Servicing Agreement,
the Sub-Servicing Agreement or any other provisions of this Agreement, the
Master Servicers shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicers, the Certificateholders and the holder of each
Serviced Companion Loan for servicing and administering of the Mortgage Loans
and each Serviced Companion Loan in accordance with the provisions of this
Agreement to the same extent as if the applicable Master Servicer was alone
servicing and administering the Mortgage Loans and each Serviced Companion Loan;
provided, however, the foregoing shall not in any way limit or impair the
indemnification provisions benefiting the Master Servicers in Section 8.25; and
further provided, however, for the avoidance of doubt, such "servicing and
administration" shall not be construed to include reporting under or for
purposes of compliance with Regulation AB. Each Master Servicer or applicable
Primary Servicer shall supervise, administer, monitor, enforce and oversee the
servicing of the applicable Mortgage Loans (or Serviced Companion Loan) by any
Sub-Servicer appointed by it. Other than with respect to the agreements with the
Primary Servicers or the Sub-Servicers under agreements that are in effect as of
the Closing Date, the terms of any arrangement or agreement between the Master
Servicer or applicable Primary Servicer, on the one hand, and a Sub-Servicer, on
the other, shall provide that such sub-servicing agreement or arrangement may be
terminated, without cause (or, with respect to a sub-servicing agreement
concerning the UCMFI Loans, with cause only, provided that "cause" will be
determined in the same manner as cause is determined with respect to a Master
Servicer pursuant to this Agreement) and without the payment of any termination
fees, by the Trustee in the event such applicable Master Servicer or the
applicable Primary Servicer is terminated in accordance with this Agreement or
the applicable Primary Servicing Agreement. In addition, none of the Special
Servicers, the Trustee, the Paying Agent, the Certificateholders or the holder
of a Serviced Companion Loan shall have any direct obligation or liability
(including, without limitation, indemnification obligations) with respect to any
Sub-Servicer. The applicable Master Servicer or applicable Primary Servicer
shall pay the costs of enforcement against any of its Sub-Servicers at its own
expense, but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent that such recovery exceeds
all amounts due in respect of the related Mortgage Loans or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed. Notwithstanding the provisions of any Primary
Servicing Agreement or any sub-servicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between a Master Servicer,
a Primary Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the applicable Master Servicer, or applicable Primary
Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the
applicable Special Servicer and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans and Serviced Companion Loans in
accordance with (and subject to the limitations contained within) the provisions
of this Agreement or the applicable Primary Servicing Agreement without
diminution of such obligation or liability by virtue of indemnification from a
Sub-Servicer and to the same extent and under the same terms and conditions as
if the applicable Master Servicer or applicable Primary Servicer alone were
servicing and administering the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicers or any Primary Servicer may appoint one or more sub-servicers (each,
along with the IXIS Sub-Servicer, a "Sub-Servicer") to perform all or any
portion of its duties hereunder for the benefit of the Trustee and the
Certificateholders, provided, however, that any decision or recommendation
involving the exercise of a Primary Servicer's discretion as a "lender" under
any loan document with respect to a Mortgage Loan shall be exercised only by the
Primary Servicer and may not be delegated to a Sub-Servicer; provided, further,
however, that no Master Servicer, Special Servicer or Primary Servicer shall
enter into a sub-servicing agreement with any party that is a Prohibited Party.
The General Master Servicer shall enter into a Primary Servicing
Agreement with each Primary Servicer and the IXIS Sub-Servicing Agreement with
the IXIS Sub-Servicer Agreement and shall not terminate such agreement except in
accordance with the terms thereof. To the extent consistent with the rights of a
Primary Servicer or a Sub-Servicer under this Agreement and the related Primary
Servicing Agreement or Sub-Servicing Agreement, but not in limitation of any
other rights granted to a Primary Servicer or a Sub-Servicer in this Agreement
and/or in the Primary Servicing Agreement or a Sub-Servicing Agreement, such
Primary Servicer or Sub-Servicer shall have all of the rights and obligations of
a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's and each Sub-Servicer's rights and
obligations under its respective Primary Servicing Agreement or Sub-Servicing
Agreement shall expressly survive a termination of the applicable Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement or Sub-Servicing Agreement has not been terminated
in accordance with its provisions, (ii) any successor Master Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the terminated Master Servicer) shall be deemed to automatically
assume and agree to each of the then current Primary Servicing Agreements or
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer, and (iii) this Agreement may not be modified in any manner
which would increase the obligations or limit the rights of any Primary Servicer
or any Sub-Servicer hereunder and/or under the applicable Primary Servicing
Agreement or the Sub-Servicing Agreement, without the prior written consent of
such Primary Servicer or the Sub-Servicer (which consent shall not be
unreasonably withheld).
If a task, right or obligation of the General Master Servicer is
delegated to a Primary Servicer under a Primary Servicing Agreement, and such
task, right or obligation involves or requires the consent of the General
Special Servicer, then such Special Servicer shall accept the performance of
such task, right or obligation by such Primary Servicer in accordance with the
terms of this Agreement (including without limitation any time periods for
consent or deemed consent to be observed by such Special Servicer) as if the
General Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicers, in such capacity, are
neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement,
nor are they bound by any provision of any Primary Servicing Agreement or the
Sub-Servicing Agreement in its capacity as Special Servicer.
Notwithstanding anything herein to the contrary, any sub-servicing
agreement with a Sub-Servicer (including the Primary Servicing Agreements and
the Sub-Servicing Agreements) shall provide that (i) the failure of the related
Sub-Servicer to comply with any of the requirements of Article XIII of this
Agreement and (ii) the failure of the related Sub-Servicer to comply with any
requirements to deliver any items required by Items 1122 and 1123 of Regulation
AB under any other pooling and servicing agreement relating to any transaction
similar to the Subject Securitization Transaction shall constitute an event of
default by such Sub-Servicer upon the occurrence of which either the applicable
Master Servicer or Special Servicer or the Depositor shall immediately terminate
the related Sub-Servicer under the related sub-servicing agreement and that such
termination shall be deemed for cause.
Section 8.5 Servicers May Own Certificates
Any Master Servicer and any Primary Servicer and any agent of the
Master Servicers or Primary Servicers 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 such Master Servicer, such Primary Servicer or such agent.
Any such interest of any Master Servicer or any Primary 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 and
Taxes
Subject to the limitations set forth below, each Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgaged Property (other than any REO
Property) (A) a Standard Hazard Insurance Policy which does not provide for
reduction due to depreciation in an amount that is at least equal to the lesser
of (i) the full replacement cost of improvements securing such Mortgage Loan or
(ii) the outstanding Principal Balance of such Mortgage Loan (and, with respect
to a Serviced Loan Group, the related Serviced Companion Loan) but, in any
event, in an amount sufficient to avoid the application of any co insurance
clause, (B) any terrorism insurance coverage for a Mortgage Loan, which the
related Mortgagor is required to maintain under the related Mortgage, to the
extent that such insurance is available at a commercially reasonable rate and
(C) any other insurance coverage for a Mortgage Loan which the related Mortgagor
is required to maintain under the related Mortgage; provided the applicable
Master Servicer shall not be required to maintain earthquake insurance on any
Mortgaged Property required by the related Mortgage unless such insurance was
required at origination and is available at a commercially reasonable rate;
provided, however, that the applicable Special Servicer shall have the right,
but not the duty, to obtain, at the Trust's expense, earthquake insurance on any
Mortgaged Property securing a Specially Serviced Mortgage Loan or an REO
Property so long as such insurance is available at a commercially reasonable
rate; provided, further, that a determination by a Master Servicer that
terrorism insurance is not available at a commercially reasonable rate shall be
subject to the approval of the Operating Adviser as set forth below. If the
related Mortgagor does not maintain the insurance set forth in clauses (A), (B)
and (C) above, then the applicable Master Servicer shall cause to be maintained
such insurance with a Qualified Insurer and the payment of the cost of such
insurance shall be a Servicing Advance; provided, that a determination by a
Master Servicer that terrorism insurance should not be obtained on a
force-placed basis shall be subject to the approval of the Operating Adviser as
set forth below. Concurrently with its making such determination, the Master
Servicer shall forward to the Operating Adviser and the applicable Special
Servicer all information used to make such determination. Upon a Master
Servicer's determination that terrorism insurance is not available at a
commercially reasonable rate or that terrorism insurance should not be obtained
on a force-placed basis, such Master Servicer shall notify the Operating Adviser
(and, with respect to any such determination regarding a Serviced Loan Group,
the holder of the related Serviced Companion Loan). Other than with respect to
the Royal Airport Office Mortgage Loan (only for so long as the holder of the
Royal Airport Office B Note is the Royal Airport Office Directing Lender), the
Operating Adviser shall have five Business Days after such notice to disapprove
such determination. The failure of the Operating Adviser to provide notice of
such disapproval in such time period shall be deemed approval. If the Operating
Adviser provides such notice of disapproval within such time period, the Master
Servicer shall obtain such insurance coverage and the cost of such insurance
coverage shall be considered a Servicing Advance.
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, on the
date of origination, 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 the applicable Certificate
Account.
Any cost (such as insurance premiums and insurance broker fees but
not internal costs and expenses of obtaining such insurance) incurred by a
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
such Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, a Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, a Master Servicer
shall not be required in any event to maintain or obtain insurance coverage to
the extent the Trustee as mortgagee does not have an insurable interest or
beyond what is reasonably available at a commercially reasonable rate and
consistent with the Servicing Standard. Each Master Servicer shall notify the
Trustee in the event it makes such determination. Notwithstanding the foregoing,
such determination shall be subject to the approval of the Operating Adviser
with respect to terrorism insurance, as set forth in the first paragraph of this
Section 8.6 and, with respect to the Royal Airport Office Loan Group, the
related Co-Lender Agreement. In addition, each Master Servicer shall be entitled
to rely at its own expense on insurance consultants in connection with any such
determination. In no event shall the Master Servicer be required to obtain any
insurance coverage that would require a Servicing Advance that constitutes a
Nonrecoverable Advance.
Each 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 (and the Serviced Companion Loans, as applicable), 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 or its parent's long-term rating is not less than "A" by S&P
and Fitch, self-insures for its obligations as set forth in the first paragraph
of this Section 8.6. 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
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 (and each Serviced Companion Loan, as applicable), the
applicable Master Servicer agrees to present, on its behalf and on behalf of the
Trustee (and the holder of each Serviced Companion Loan, as applicable), 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, except in the
case of Mortgage Loans under which Escrow Amounts are not held by the applicable
Master Servicer (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) 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 (or, with respect to real estate taxes, prior
to the earlier of the imposition of late tax payment penalty charges or the
notice of intent to create a tax lien on the Mortgaged Property), subject to
Section 4.4 hereof. No costs incurred by the Master Servicers or the Trustee, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding principal
balances of such Mortgage Loans.
Section 8.7 [Reserved]
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 the Royal Airport Office
Mortgage Loan by the holder of the Royal Airport Office B Note or the receipt by
a Master Servicer of a notification that payment in full (or such payment, if
any, in connection with the satisfaction and discharge in full of any Specially
Serviced Mortgage Loan) will be escrowed in a manner customary for such
purposes, and upon notification by the applicable 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 the applicable 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. The provisions of the immediately
preceding sentence shall not, in any manner, limit or impair the right of the
Master Servicers to execute and deliver, on behalf of the Trustee, the
Certificateholders, the holders of the Serviced Companion Loans 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 or the
Serviced Companion Loans, and with respect to the Mortgaged Properties held for
the benefit of the Certificateholders and the holders of the Serviced Companion
Loans. 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 applicable
Special Servicer, as the case may be.
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of the Certificateholders
Notwithstanding any other provisions of this Agreement, each 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,
each Master Servicer in respect of such Mortgage Loans (or Serviced Companion
Loans), whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, including any funds on deposit in
the applicable Certificate Accounts (or the Serviced Companion Loan Custodial
Account), shall be held by the applicable Master Servicer for and on behalf of
the Trustee and the Certificateholders (or the holder of a Serviced Companion
Loan, as applicable) and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement. Each Master
Servicer agrees that it shall not create, incur or subject any Servicer Mortgage
Files or Trustee Mortgage File or any funds that are deposited in the
Certificate Accounts or the applicable Escrow Accounts, or any funds that
otherwise are or may become due or payable to the Trustee or the Paying Agent,
to any claim, lien, security interest, judgment, levy, writ of attachment or
other encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Servicer Mortgage Files or Trustee Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicers shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Master Servicers under this Agreement.
Section 8.10 Servicing Compensation
(a) As compensation for its activities hereunder, each Master
Servicer shall be entitled to the Master Servicing Fee and the General Master
Servicer shall be entitled to the Primary Servicing Fee (except with respect to
the NCB, FSB Loans and the NCCB Loan), which shall be payable by the Trust from
amounts held in the applicable Certificate Accounts (and from the Serviced
Companion Loan Custodial Account, to the extent related solely to each Serviced
Companion Loan) or otherwise collected from the Mortgage Loans and REO Loans as
provided in Section 5.2. The General Master Servicer shall be required to pay to
the Primary Servicers the related Primary Servicing Fees (except with respect to
the NCB, FSB Loans and the NCCB Loan), which shall be payable by the Trust from
amounts as provided in Section 5.1(c), unless retained by the Primary Servicers
from amounts transferred to the General Master Servicer in accordance with the
terms of the Primary Servicing Agreements. The Master Servicers shall be
required to pay to the holders of the rights to the Excess Servicing Fees
(including, if applicable, the applicable Master Servicer), 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 or Primary Servicer (to
the extent that such Person was ever a Master Servicer or a Primary Servicer),
as applicable, for any reason, it will continue to have the right to receive its
portion of the Excess Servicing Fee, and any of the holders of the right to
receive Excess Servicing Fees shall have the right to assign its portion of the
Excess Servicing Fee, whether or not it is then acting as a Master Servicer or
Primary Servicer hereunder. The General Master Servicer shall also be entitled
to the Primary Servicing Fee (except with respect to the NCB, FSB Loans and the
NCCB Loan), which shall be payable by the Trust from amounts held in the
applicable Certificate Account (or a sub-account thereof) or otherwise collected
from the Mortgage Loans as provided in Section 5.2, provided that the Primary
Servicing Fee payable to the General Master Servicer shall only be collected
from the Mortgage Loans set forth on Schedule III, Schedule IV and Schedule VI.
There shall be no Primary Servicing Fee payable with respect to the NCB, FSB
Loans or the NCCB Loan.
(b) Additional servicing compensation in the form of assumption
application fees, assumption fees, extension fees, servicing fees, default
interest (excluding default interest allocable to the Royal Airport Office B
Note if the holder of the Royal Airport Office B Note has cured the related
default pursuant to the terms of the related Co-Lender Agreement) payable at a
rate above the Mortgage Rate (net of any amount used to pay Advance Interest,
Additional Trust Fund Expenses and Special Servicing Fees relating to the
subject Mortgage Loan (or, with respect to the Michigan Plaza Pari Passu Loan or
Royal Airport Office Mortgage Loan, the applicable Serviced Loan Group) as
provided in Section 4.5), Modification Fees, forbearance fees, Late Fees (net of
any amount used to pay Advance Interest), other usual and customary charges and
fees actually received from Mortgagors and any other fees listed in any of the
Primary Servicing Agreements, all such fees subject to allocation pursuant to
such Primary Servicing Agreements, shall be retained by the applicable Master
Servicer, provided that the applicable Master Servicer shall be entitled to
receive such compensation as set forth in Section 5.2(a)(i). If the applicable
Master Servicer collects any amount payable to the applicable Special Servicer
hereunder in connection with an REO Mortgage Loan or Specially Serviced Mortgage
Loan, the applicable Master Servicer shall promptly remit such amount to the
applicable Special Servicer as provided in Section 5.2. The applicable Master
Servicer shall be required to pay (in the manner otherwise provided herein) all
applicable expenses incurred by it in connection with its servicing activities
hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee payable to each Master Servicer for each monthly period relating to each
Determination Date shall be reduced by an amount equal to the Compensating
Interest (if any) relating to Mortgage Loans serviced by such Master Servicer
for such Determination Date.
(d) Each Master Servicer, as applicable, 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 its respective Mortgage
Loans (including any Specially Serviced 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 its
respective 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 (and, with respect to each Serviced Companion Loan,
the General Master Servicer shall also deliver to the holder thereof or its
servicer) on the related Report Date, the Loan Periodic Update File with respect
to such Distribution Date, (ii) each Master Servicer shall report to the Paying
Agent (and, with respect to each Serviced Companion Loan, the General Master
Servicer shall also deliver to the holder thereof or its servicer) on the
related Advance Report Date, the amount of any P&I Advance to be made by such
Master Servicer on the related Master Servicer Remittance Date and (iii) each
Master Servicer shall notify the Paying Agent as soon as reasonably possible,
but no later than noon, New York City time on the Master Servicer Remittance
Date, of the amount of any Principal Payments and Balloon Payments received by
the Business Day immediately preceding the Master Servicer Remittance Date,
which amounts were not reported pursuant to clause (i) or (ii) immediately
above. Each Special Servicer is required to provide, in the form required under
Section 9.32, all information relating to Specially Serviced Mortgage Loans in
order for the applicable Master Servicer to satisfy its duties in this Section
8.11 not later than one Business Day prior to the date such Master Servicer is
required to distribute any report. Each Master Servicer shall be entitled in
good faith to rely on and shall have no liability for information provided by
third parties, including the Special Servicers.
(b) Each Master Servicer shall notify the Trustee and the Paying
Agent on or before the Closing Date of the initial location of the applicable
Certificate Accounts and, promptly following any change in location of any
Certificate Account, the new location thereof. In addition, the General Master
Servicer shall notify the holder of each Serviced Companion Loan promptly
following any change in location of the Serviced Companion Loan Custodial
Account, the new location thereof.
(c) Each Master Servicer shall promptly inform the applicable
Special Servicer of the name, account number, location and other necessary
information concerning the applicable Certificate Accounts in order to permit
such Special Servicer to make deposits therein.
(d) Reserved.
(e) Each Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the applicable
Special Servicer, the Operating Adviser and each Rating Agency, in each case
upon request by such Person and only to the extent such reports and information
are not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicers shall not have any obligation to deliver any statement,
notice or report that is then made available on such Master Servicer's website
or the Paying Agent's 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) Each Master Servicer shall deliver or cause to be delivered to
the Paying Agent (and, in respect of each Serviced Companion Loan, the holder of
the related Serviced Companion Loan) the following CMSA Reports with respect to
the Mortgage Loans serviced by such Master Servicer (and, if applicable, the
related REO Properties) providing the required information as of the related
Determination Date upon the following schedule: (i) a CMSA Comparative Financial
Status Report not later than each Report Date, commencing in July 2006; (ii) a
CMSA Operating Statement Analysis Report, the CMSA Financial File and the CMSA
NOI Adjustment Worksheet in accordance with Section 8.14 of this Agreement;
(iii) a CMSA Servicer Watch List in accordance with and subject to the terms of
Section 8.11(h) on each Report Date, commencing in July 2006; (iv) a CMSA Loan
Setup File (with respect to the initial Distribution Date only) not later than
the Report Date in June 2006; (v) a CMSA Loan Periodic Update File not later
than each Report Date commencing in June 2006 (a June 2006 report will be issued
by the Master Servicer in the format and with the content as reasonably agreed
by the Master Servicer and the Trustee); (vi) a CMSA Property File on each
Report Date, commencing in July 2006; (vii) a CMSA Delinquent Loan Status Report
on each Report Date, commencing in July 2006; (viii) a CMSA Historical Loan
Modification and Corrected Mortgage Loan Report not later than each Report Date,
commencing in July 2006; (ix) a CMSA Historical Liquidation Report not later
than each Report Date, commencing in July 2006 and (x) a CMSA REO Status Report
on each Report Date, commencing in July 2006. In the case of the CMSA Property
File, the CMSA Comparative Financial Status Reports, the quarterly CMSA
Operating Statement Analysis Report and quarterly CMSA Financial File, with
respect to the MM Loans, the Master Servicer will only be required to deliver
such reports at the level of frequency at which the related Mortgagor is
required to deliver the applicable financial information to the lender (which
generally is annually). 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 applicable Special Servicer to the
applicable Master Servicer in writing and on a computer readable medium
reasonably acceptable to the Master Servicers and such Special Servicer on the
date and in the form required under Section 9.32. The Master Servicers'
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 applicable Special Servicer's obligations under Section 9.32. The reporting
obligations of a Master Servicer in connection with any Serviced Loan Group
shall be construed to refer only to such information regarding the Mortgage
Loans (and the related Mortgaged Property) and by reference to the Mortgage
Loans only, but whenever the applicable Master Servicer remits funds to the
holder of the Royal Airport Office B Note, it shall thereupon deliver to such
holder a remittance report identifying the amounts in such remittance.
(h) If a Master Servicer, in accordance with the Servicing Standard,
seeks 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 the Royal Airport Office B Note), such Master Servicer shall
deliver notice thereof to the applicable Special Servicer, the Operating
Adviser, the holder of a Royal Airport Office 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 and in compliance with the
Servicing Standard will entitle such Master Servicer to make such drawing. The
applicable Special Servicer shall have five Business Days to consent to such
drawing, which consent may be communicated by facsimile transmission or e-mail
and shall not be unreasonably withheld. If the applicable Special Servicer does
not respond within such five Business Day period, consent shall be deemed to
have been given.
Section 8.12 [Reserved]
Section 8.13 [Reserved]
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties
Within 105 calendar days (or 90 days as to any Special Servicer), or
120 days with respect to any Co-op Mortgage Loans, after the end of each of the
first three calendar quarters (in each year) for the trailing 12 months,
quarterly or year-to-date information received, commencing for the quarter
ending on March 31, 2007, each Master Servicer shall deliver to the Paying Agent
and the Operating Adviser an Operating Statement Analysis Report and a Financial
File for each Mortgaged Property in electronic format, prepared using the non
normalized quarterly, year-to-date or trailing 12 month operating statements
and, in the case of Mortgage Loans other than Co-op Mortgage Loans, rent rolls
received from the related Mortgagor, if any. In the case of the MM Loans,
however, the Master Servicer will only be required to deliver these reports at
the level of frequency at which the underlying loan documents require the
related Mortgagor to deliver the applicable financial information to the lender
(which generally is annually). With respect to Specially Serviced Mortgage
Loans, the applicable Master Servicer shall include information only to the
extent provided by the applicable Special Servicer, which an Operating Statement
Analysis Report and a Financial File shall be prepared by the applicable Special
Servicer and delivered to the applicable Master Servicer within 90 days after
the end of each of the first three quarters of each year for the trailing twelve
months, quarterly or year-to-date information received and other information
utilized by the applicable Special Servicer to prepare such report or files.
With respect to any Mortgage Loan for which a Primary Servicer is appointed as a
Special Servicer with respect to such Mortgage Loan pursuant to Section 9.39,
the reports prepared by any such Special Servicer shall only include the CMSA
reports and related data required by the related Primary Servicing Agreement,
and such other reports as are mutually agreed to by the related Primary Servicer
and the General Master Servicer. Not later than the Report Date occurring in
June of each year, beginning in 2007 for year-end 2006, the applicable Master
Servicer (in the case of Mortgage Loans that are not Specially Serviced Mortgage
Loans and as provided by the applicable Special Servicer to the applicable
Master Servicer for Specially Serviced Mortgage Loans) shall deliver to the
Paying Agent and the Operating Adviser an Operating Statement Analysis Report, a
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, in each case of Mortgage
Loans other than Co-op Mortgage Loans, of each applicable Mortgagor (to the
extent provided to the applicable Master Servicer or applicable Special Servicer
by or on behalf of each Mortgagor). In the case of Specially Serviced Mortgaged
Loans, as provided to the applicable Special Servicer by the Mortgagor, the
applicable Special Servicer shall forward such information to the applicable
Master Servicer on or before April 15 of each such year as provided for in
Section 9.32(e) herein, containing such information and analyses for each
Mortgage Loan provided for in the respective forms of Operating Statement
Analysis Report, Financial File and NOI Adjustment Worksheet. Such information
provided by the applicable Master Servicer shall include what would customarily
be included in accordance with the Servicing Standard including, without
limitation, Debt Service Coverage Ratios and income. As and to the extent
reasonably requested by a 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 Agent, the Underwriters and, solely as it relates to a Serviced
Loan Group, the holder of the related Serviced Companion Loan, the Operating
Statement Analysis Reports, the Financial Files and the NOI Adjustment
Worksheets described above pursuant to Section 5.4(a). The General Master
Servicer shall make the CMSA Operating Statement Analysis Report, the operating
statements, rent rolls (except in the case of Co-op Mortgage Loans), property
inspections and NOI Adjustment Worksheet for each Mortgage Loan available on its
website (which shall initially be located at xxx.xxxxxxxxxx.xxx/xxx/xxxxxxxx
(the "General Master Servicer's Website")) by the Business Day following the
Distribution Date in July 2006. The aggregated CMSA Reports for the NCB, FSB
Loans and the NCCB Loan shall be available on the NCB Master Servicer's Website
(which shall initially be located at xxx.xxx.xxxx (the "NCB Master Servicer's
Website") by the Business Day following the Distribution Date in July 2006. With
respect to the NCB, FSB Loans and the NCCB Loan, the related rent rolls (except
in the case of Co-op Mortgage Loans), operating statements, financial statements
and inspections collected with respect to the Mortgaged Properties shall be
available for review by the Operating Adviser, the other parties to this
Agreement, the Rating Agencies, any Certificateholder and other appropriate
parties via a password protocol and execution of an agreement relating thereto
on the applicable Master Servicer's website within 30 days following receipt
thereof by the applicable Master Servicer. Each Master Servicer shall, upon
request by any of such parties, deliver copies of such documents to such parties
if such documents are not available on such Master Servicer's website at such
time. Pursuant to the Mortgage Loan Purchase Agreements, the Sellers shall
populate all fields or any information for their related Mortgage Loans
reasonably requested by the applicable Master Servicer to complete the Property
File.
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer
(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited
by applicable law or the loan documents, 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 Primary Servicer, the Placement Agent, any Underwriter,
each Rating Agency, the Paying Agent or the Depositor (and the holder of a
Serviced Companion Loan, if such notice relates to such Serviced Companion
Loan), originals or copies of, among other things, the following items: (i) this
Agreement and any amendments thereto, (ii) all final and released Operating
Statement Analysis Reports and the Loan Periodic Update Files, (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) the most recent
property Inspection Reports in the possession of the Paying Agent in respect of
each Mortgaged Property, (vi) the most recent Mortgaged Property annual
operating statement and, in the case of Mortgage Loans other than Co-op Mortgage
Loans, rent roll, if any, collected by or on behalf of the Master Servicers or
the Special Servicers, (vii) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Master Servicers and/or the
Special Servicers, and (viii) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support a
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, each Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the applicable Special Servicer, the Primary Servicers, the
Sellers, any Placement Agent, the Underwriters, the Operating Adviser, any
Certificateholder, any holder of a Serviced Companion Loan 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 the applicable Master Servicers' or
the Paying Agent's Website or the electronic delivery of such information to the
requesting Person), in each case to the extent in its respective possession, and
access to Servicing Officers of the applicable Master Servicers 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 Servicers upon request; provided, however,
that the applicable Master Servicers shall be permitted to require payment by
the requesting party (other than the Depositor, the Trustee, the Paying Agent,
the applicable 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 either of the Master
Servicers 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 of the Master Servicers shall have any liability to the
Depositor, the Trustee, the Paying Agent, the applicable Special Servicer, any
Certificateholder, any Certificate Owner, the holder of any Serviced Companion
Loan, the 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 any partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents thereof), the Trust
(from amounts held in any account (including, with respect to any such claims
relating to a Serviced Companion Loan, from accounts held in the Serviced
Companion Loan Custodial Account)) shall hold harmless and indemnify such Master
Servicer from any loss or expense (including attorney fees) relating to or
arising from such claims.
(d) Each Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicers shall not be
required to produce any ad hoc non-standard written reports not otherwise
required under this Agreement with respect to such Mortgage Loans. In the event
a Master Servicer elects to provide such non-standard reports, it may require
the Person requesting such report (other than a Rating Agency) to pay a
reasonable fee to cover the costs of the preparation thereof. Notwithstanding
anything to the contrary herein, as a condition to a 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 applicable
Special Servicer, the Primary Servicer, the Sellers, the Placement Agent, any
Underwriter, any Rating Agency and/or the Certificateholders, any holder of a
Serviced Companion Loan or Certificate Owners. Any transmittal of information by
a Master Servicer to any Person other than the Trustee, the Paying Agent, the
other Master Servicer, the Special Servicers, the Rating Agencies, the Operating
Adviser or the Depositor may be accompanied by a letter from such Master
Servicer containing a disclaimer as to the confidentiality of the information
requested.
(e) Each Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that such Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) Each Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, each of the Master Servicers and each of the
Special Servicers shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Operating Adviser during regular business
hours at such time and for such duration as the applicable Master Servicer or
Special Servicer, and the Operating Adviser shall reasonably agree, regarding
the performance and servicing of the Mortgage Loans and REO Properties for which
such Master Servicer or such Special Servicer, as the case may be, is
responsible. As a condition to such disclosure, the Operating Adviser shall
execute a confidentiality agreement in form reasonably acceptable to each Master
Servicer, each Special Servicer and the Operating Adviser.
Section 8.16 Rule 144A Information
For as long as any of the Certificates are "restricted securities"
within the meaning of Rule 144A under the Securities Act, each Master Servicer
agrees to provide to the Paying Agent 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 upon
the request of such Certificateholder, such Certificate Owner or the Paying
Agent, subject to this Section 8.16 and the provisions of Section 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 Securities Act, including, without limitation, copies of
the reports and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the 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 Agent, the Underwriters or
the Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to a 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 Placement Agent, the Underwriters, any Rating Agency and/or
the Certificateholders and Certificate Owners. The Master Servicers 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 Agent or
the Underwriters) sufficient to cover the reasonable costs and expenses of
making such information available.
Section 8.17 Inspections
Each Master Servicer shall, at its own expense, inspect or cause to
be inspected each Mortgaged Property for which it is acting as Master Servicer,
other than Mortgaged Properties related to Specially Serviced Mortgage Loans,
every calendar year beginning in 2007, or every second calendar year beginning
in 2008 if the Principal Balance of the related Mortgage Loan is under
$2,000,000; provided that each Master Servicer shall, at the expense of the
Trust, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan for which it is acting as Master Servicer (other than a Specially
Serviced Mortgage Loan, or if there has not been an inspection within the past
six months) that has a Debt Service Coverage Ratio that falls below 1.0x or,
with respect to Co-op Mortgage Loans, 0.90x. The foregoing sentence shall not
alter the terms of the applicable Special Servicer's obligation to inspect
Mortgaged Properties as set forth in Section 9.4(b) hereto. The applicable
Master Servicer shall cause to be prepared an Inspection Report relating to each
inspection.
The applicable Inspection Reports shall be available for review by
the Trustee, the applicable Special Servicer, the Rating Agencies, the Placement
Agent, the Underwriters, the Depositor, the Paying Agent, the Operating Adviser,
any Certificate Owner, any Seller and any Primary Servicer via password protocol
and execution of an agreement relating thereto on the General Master Servicer's
Website. With respect to the NCB, FSB Loan and the NCCB Loan, the applicable
Inspection Reports shall be available for review by the Trustee, the applicable
Special Servicer and, upon request, the Rating Agencies, the Placement Agent,
the Underwriters, the Depositor, the Paying Agent, the Operating Adviser, any
Seller, any Primary Servicer and, solely as it relates to a Serviced Loan Group,
to the holder of the related Serviced Companion Loan, via password protocol and
execution of an agreement relating thereto on the NCB Master Servicer's Website
(which shall be initially located at xxx.xxx.xxxx) by the Business Day following
the Distribution Date in July 2006. The NCB Master Servicer shall, upon request
by any of such parties, deliver copies of such documents to any of the foregoing
parties if such documents are not available on the NCB Master Servicer's Website
at such time. The applicable Special Servicer shall have the right, but no duty,
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 such Special Servicer notifies such Master Servicer
prior to such inspection.
Section 8.18 [Reserved]
Section 8.19 Specially Serviced Mortgage Loans
(a) The applicable Master Servicer shall send a written notice to
the applicable Special Servicer, the Operating Adviser, Rating Agencies, the
Paying Agent, the Trustee and, solely as it relates to a Serviced Loan Group, to
the holder of the related Serviced Companion 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 applicable the Master Servicer may rely on the
Mortgage Loan Schedule) and, except for the Rating Agencies, the Paying Agent
and the Trustee, shall be accompanied by a copy of the Servicer Mortgage File.
The applicable 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 applicable 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 applicable 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
applicable 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 applicable Special Servicer and shall have no liability
for the inaccuracy of any of its reports due to the inaccuracy of the
information provided by such Special Servicer.
(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the applicable Special Servicer, in order for such
Special Servicer to comply with its obligations under this Agreement, such
information (and in the form and medium) as the Special Servicer may reasonably
request in writing from time to time, provided that (i) the applicable 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 applicable
Special Servicer to pay a reasonable fee to cover the costs of the preparation
thereof.
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers (a) The General Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the General Master Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of
the United States, and shall be and thereafter remain, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
General Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the General Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The General
Master Servicer has duly and validly authorized the execution, delivery
and performance of this Agreement and this Agreement has been duly
executed and delivered by the General Master Servicer; and this Agreement,
assuming the due authorization, execution and delivery thereof by the
Depositor, the NCB Master Servicer, the Trustee, the Paying Agent and the
Special Servicers, evidences the valid and binding obligation of the
General Master Servicer enforceable against the General 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 the General Master Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder; and
(vi) the performance of the services by the General Master Servicer
contemplated by this Agreement are in the ordinary course of business of
the General Master Servicer and the General Master Servicer possesses all
licenses, permits and other authorizations necessary to perform its duties
hereunder..
(b) The NCB Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the NCB Master Servicer is a federal savings bank duly
organized, validly existing and in good standing under the laws of the
United States, and the NCB Master Servicer is 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 the
NCB Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the NCB Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
NCB Master Servicer's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is bound,
which default or breach, in the good faith and reasonable judgment of the
NCB Master Servicer, is likely to affect materially and adversely either
the ability of the NCB Master Servicer to perform its obligations under
this Agreement or the financial condition of the NCB Master Servicer;
(iii) the NCB Master Servicer has the full power and authority to
enter into and consummate all transactions involving the NCB Master
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the NCB Master Servicer, enforceable against the
NCB Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) the NCB Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the NCB Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the NCB Master Servicer to perform its obligations under this Agreement
or the financial condition of the NCB Master Servicer;
(vi) no consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the NCB Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the NCB Master Servicer to perform its obligations under
this Agreement;
(vii) no litigation is pending or, to the best of the NCB Master
Servicer's knowledge, threatened against the NCB Master Servicer the
outcome of which, in the NCB Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the NCB Master Servicer
from entering into this Agreement or materially and adversely affect the
ability of the NCB Master Servicer to perform its obligations under this
Agreement; and
(viii) the NCB Master Servicer has errors and omissions insurance as
required by Section 8.2.
(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 a Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the 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, the Primary Servicers
and the applicable Special Servicer of the occurrence, or the failure to occur,
of any event that, with notice or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
Section 8.21 Merger or Consolidation
Any Person into which 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 Rating Agency provides a Rating Agency Confirmation
(including, as to any such succession with respect to the General Master
Servicer, with respect to any securities rated by a Rating Agency evidencing
direct beneficial ownership interest in any Serviced Companion Loan). If such a
transaction occurs and the conditions to the provisions in the foregoing
sentence are not met, the Trustee may terminate, or if such a transaction occurs
and the conditions set forth in the following paragraph are not met the Trustee
shall terminate, the successor's, survivor's or resulting entity's servicing of
the Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Sections 8.28 and 8.29.
Notwithstanding the foregoing, as long as the Trust is subject to
the reporting requirements of the Exchange Act, neither Master Servicer may
remain a Master Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, unless (i) such Master Servicer is the surviving entity
of such merger, consolidation or transfer or (ii) the Depositor consents to such
merger, consolidation or transfer, which consent shall not be unreasonably
withheld (and if, within 45 days following the date of delivery of a notice by
the applicable Master Servicer to the Depositor of any merger or similar
transaction described in the prior paragraph, the Depositor shall have failed to
notify the applicable Master Servicer of the Depositor's determination to grant
or withhold such consent, such failure shall be deemed to constitute a grant of
such consent).
Section 8.22 Resignation of the 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 such 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 such Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by such Master Servicer to the Trustee
and the Paying Agent.
(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, (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 and (z) in the case of a
successor servicer to the General Master Servicer, assumes all obligations of
the resigning General Master Servicer under the Primary Servicing Agreements;
(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 such Rating Agency.
Section 8.23 Assignment or Delegation of Duties by the Master
Servicer
A 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 such 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 such Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) such Master Servicer gives the Depositor, the applicable Special
Servicer, the Primary Servicers, the holder of a Serviced Companion Loan (only
if such assignment/delegation relates to the related Serviced Loan Group) 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 such Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreements; (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 from Fitch and S&P; and (v) 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, such 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 such Master
Servicer hereunder prior to the satisfaction of the conditions to such
assignment set forth in the preceding sentence. Notwithstanding the above, such
Master Servicer may appoint the Primary Servicers and Sub-Servicers in
accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicers and
Others
(a) Neither of the Master Servicers nor any of the partners,
representatives, Affiliates, members, managers, 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 Paying Agent, the Placement
Agent, the Underwriters, a holder of a Serviced Companion Loan or the Special
Servicers 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 any Master
Servicer or any such Person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
the Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicers and any partner, representative, Affiliate,
member, manager, 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 applicable
Special Servicer) respecting any matters arising hereunder. The Master Servicers
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement; provided that each 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 or the interests of the holders of the Serviced
Companion Loans (subject to the applicable Special Servicer's servicing of
Specially Serviced Mortgage Loans as contemplated herein). In such event, all
legal expenses and costs of such action shall be expenses and costs of the
Trust, and any 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, the Master Servicers 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 such Master Servicers 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 applicable Special
Servicer and Mortgagors, and will have no duty to investigate or verify the
accuracy thereof. Neither the Master Servicers, nor any partner, representative,
Affiliate, member, manager, director, officer, employee or agent, shall be
personally 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 the Master Servicers nor
any partner, representative, Affiliate, member, manager, director, officer,
employee or agent, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicers shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicers, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicers 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) a 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 (in electronic or
paper format) reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of such Master Servicer
shall be indemnified by the Trustee, the Paying Agent and the applicable Special
Servicer, as the case may be, and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that such Master Servicer
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of the Trustee's, the Paying Agent's or the
applicable Special Servicer's duties hereunder, as the case may be, or by reason
of negligent disregard of the Trustee's, the applicable Special Servicer's or
the Paying Agent's obligations and duties hereunder, as the case may be,
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations). A
Master Servicer shall immediately notify the Trustee, the Paying Agent and the
applicable Special Servicer, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans for which it is acting as Master Servicer
entitling such Master Servicer to indemnification hereunder, whereupon the
Trustee, the Paying Agent or the applicable Special Servicer, in each case, to
the extent the claim is related to its respective willful misfeasance, bad
faith, negligence or negligent disregard, shall 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 applicable Special Servicer shall not affect any rights that such
Master Servicer may have to indemnification under this Agreement or otherwise,
unless the Trustee's, the Paying Agent's or the applicable 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 such
Master Servicer hereunder. Any payment hereunder made by the Trustee, the Paying
Agent or the applicable Special Servicer pursuant to this paragraph to such
Master Servicer shall be paid from the Trustee's, the Paying Agent's or the
applicable Special Servicer's own funds, without reimbursement from the Trust
therefor except to the extent achieved through subrogation as provided in this
Agreement. Any expenses incurred or indemnification payments made by the
Trustee, the Paying Agent or the applicable Special Servicer shall be reimbursed
by the party so paid, if a court of competent jurisdiction makes a final
judgment that the conduct of the Trustee, the Paying Agent or the applicable
Special Servicer, as the case may be, was not culpable of willful misfeasance,
bad faith or negligence in the performance of its respective duties hereunder or
of negligent disregard of its respective duties hereunder or the indemnified
party is found to have acted with willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims
(a) Each Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each such Master
Servicer shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to this Agreement, any
Mortgage Loans, the Serviced Companion Loans (as provided in the following
paragraph), 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 such
Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence and subject to the
provisions of Section 9.40, the indemnification described in the preceding
paragraph (including in the case of such claims or losses that relate primarily
to the administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
provisions of the Code or the actual payment of any REMIC tax or expense) shall
be paid out of collections on, and other proceeds of, the Mortgage Loans as a
whole but not out of collections on, or other proceeds of, each Serviced
Companion Loan. In the case of any such claims or 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,
if such claims or losses relate to a Serviced Loan Group, then such
indemnification shall be paid (x) first, out of collections on, and other
proceeds of, the Michigan Plaza Pari Passu Loan or Royal Airport Office Mortgage
Loan, as applicable, and the Michigan Plaza Companion Loan or Royal Airport
Office B Note, as applicable, in the relative proportions provided for in the
applicable Co-Lender Agreement and (y) if the collections and proceeds described
in subclause (x) are not sufficient to so indemnify such 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.
A 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 and satisfy any settlement
or other disposition in respect of such claim. The indemnification provided
herein shall survive the termination of this Agreement or of the Master
Servicers in such capacity. The Trustee, the Paying Agent or the Master
Servicers 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, a Serviced Companion Loan as described above, out of the
Serviced Companion Loan Custodial Account) any payments certified by the
applicable Master Servicer to the Trustee and the Paying Agent as required to be
made to the applicable Master Servicer pursuant to this Section 8.25.
(b) Each Master Servicer agrees to indemnify the Trustee, the
applicable Special Servicer, the Trust, the Depositor, the Paying Agent, and any
partner, representative, Affiliate, member, manager, 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 applicable 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 hereunder or by reason of negligent disregard of such Master
Servicer's obligations and duties hereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation such
Master Servicer is replaced, the parties hereto agree that the amount of such
claims, losses, penalties, fines, legal fees and related costs, judgments, and
other costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the applicable
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 Depositor, the applicable Special Servicer, the Paying Agent or the
Trust to indemnification under this Section 8.25(b), whereupon the applicable
Master Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the applicable 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 applicable Special Servicer, the Depositor, the
Paying Agent or the Trust may have to indemnification under this Agreement or
otherwise, unless the applicable 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 applicable 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 the applicable Master Servicer was not culpable of willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or of negligent disregard of its respective duties hereunder or the
indemnified party is found to have acted with willful misfeasance, bad faith or
negligence.
(c) The Primary Servicer with respect to the MM Loans and any
partner, representative, Affiliate, member, manager, director, officer, employee
or agent thereof shall be indemnified by the Trust and held harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, its Primary
Servicing Agreement (but only if, and to the extent that, the General Master
Servicer would have been entitled to indemnification therefor under this
Agreement if it were directly servicing the MM Loans, any MM Loan (solely with
respect to the Primary Servicer for such MM Loans), any REO Property or the
Certificates or any exercise of any right under this Agreement or its related
Primary Servicing Agreement (limited as set forth above) reasonably requiring
the use of counsel or the incurring of expenses other than any loss, liability
or expense incurred by reason of such Primary Servicer's willful misfeasance,
bad faith or negligence in the performance of duties thereunder. Such Primary
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to such Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the related Primary Servicing Agreement.
The Trustee, the Paying Agent or the General Master Servicer shall promptly make
from the applicable Certificate Account any payments certified by such Primary
Servicer with respect to the MM Loans to the Trustee and the Paying Agent as
required to be made to such Primary Servicer pursuant to this Section 8.25.
(d) The Primary Servicer with respect to the MM Loans agrees to
indemnify the Trustee, the General Special Servicer, the Trust, the Depositor,
the Paying Agent, and any partner, representative, Affiliate, member, manager,
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 General 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 such Primary
Servicer's duties under this Agreement, its related Primary Servicing Agreement
or by reason of negligent disregard of such Primary Servicer's obligations and
duties thereunder (including a breach of such obligations a substantial motive
of which is to obtain an economic advantage from being released from such
obligations), and if in any such situation such Primary Servicer is replaced,
the parties hereto agree that the amount of such claims, losses, penalties,
fines, legal fees and related costs, judgments, and other costs, liabilities,
fees and expenses shall at least equal the incremental costs, if any, of
retaining a successor primary servicer. The Trustee, the General Special
Servicer, the Paying Agent or the Depositor, as applicable, shall immediately
notify such Primary Servicer if a claim is made by any Person with respect to
this Agreement, the related Primary Servicing Agreement or the MM Loans (solely
with respect to the Primary Servicer for the MM Loans) entitling the Trustee,
the Depositor, the General Special Servicer, the Paying Agent or the Trust to
indemnification under this Section 8.25(d), whereupon such Primary Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the General 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
such Primary Servicer shall not affect any rights the Trustee, the applicable
Special Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement, the related Primary Servicing Agreement or
otherwise, unless such Primary Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the related Primary Servicing Agreement and
the resignation or termination of the applicable Master Servicer, the applicable
Special Servicer, the Paying Agent and the Trustee. Any expenses incurred or
indemnification payments made by such Primary Servicer with respect to the MM
Loans 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
Primary Servicer was not culpable or that such Primary Servicer did not act with
willful misfeasance, bad faith or negligence.
(e) The Master Servicers shall not have any liability to the
Depositor, the Trustee, the Paying Agent, the Special Servicers, any
Certificateholder, any Certificate Owner, any holder of a Serviced Companion
Loan, any Primary Servicer, the Placement Agent, any Underwriter, any Rating
Agency or any other Person to whom it delivers information pursuant to the
provisions 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 any partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents thereof), the Trust (from
amounts held in any account) shall hold harmless and indemnify such Master
Servicer from any loss or expense (including attorney fees) relating to or
arising from such claims.
Section 8.26 Reserved
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions
The Master Servicers 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 the REMIC Pools created hereby as REMICs and each of the
Class EI Grantor Trust created hereby as a grantor trust under the Code. The
Master Servicers shall take no action or (A) cause any REMIC Pool to take any
action that could (i) endanger the status of any REMIC Pool as a REMIC under the
Code or (ii) result in the imposition of a tax upon any REMIC Pool (including,
but not limited to, the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code or on prohibited contributions pursuant to Section
860G(d) of the Code) or (B) cause the Class EI Grantor Trust to take any action
that could (i) endanger its status as a grantor trust or (ii) result in the
imposition of any tax upon the Class EI Grantor Trust, unless the Trustee shall
have received a Nondisqualification Opinion (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Master
Servicers shall comply with the provisions of Article XII hereof.
Section 8.28 Termination
(a) The obligations and responsibilities of either Master Servicer
created hereby (other than the obligation of the Master Servicers to make
payments to the Paying Agent as set forth in Section 8.29 and the obligations of
the Master Servicers to the Trustee, the Paying Agent, the applicable Special
Servicer and the Trust as set forth in Section 8.25) shall terminate (i) on the
date which is the later of (A) the final payment or other liquidation of the
last Mortgage Loan remaining outstanding (and final distribution to the
Certificateholders) or (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) if an Event of Default with
respect to such Master Servicer described in clauses 8.28(b)(iii), (iv), (viii)
or (ix) (but, with respect to clause (ix), only if directed by the
Certificateholders or the Operating Adviser as set forth in the last sentence of
this Section 8.28(a)) has occurred, 60 days following the date on which the
Trustee or Depositor gives written notice to such Master Servicer that such
Master Servicer is terminated or (iii) if an Event of Default with respect to
such Master Servicer described in clauses 8.28(b)(i), (ii), (v), (vi) or (vii)
has occurred, immediately upon the date on which the Trustee or the Depositor
gives written notice to such Master Servicer that such Master Servicer is
terminated. After any Event of Default, the Trustee (i) may elect (or, with
respect to clause 8.28(b)(x), either the Trustee or the Depositor may elect) to
terminate such 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. After
an Event of Default described in Section 8.28(b)(ix) below, the Trustee shall,
at the written direction of the Operating Adviser or the holders of Certificates
representing more than 51% of the Aggregate Certificate Balance of all
Certificates, terminate such Master Servicer.
(b) "Event of Default," wherever used herein, means, with respect to
any Master Servicer, any one of the following events:
(i) any failure by such Master Servicer, at the times required
hereunder, to remit to the Paying Agent or otherwise make any payment
required to be remitted by such Master Servicer under the terms of this
Agreement, including any required P&I Advances, which continues unremedied
until 11:00 a.m. on the Distribution Date; or
(ii) any failure by such Master Servicer to (i) make a required
deposit to the applicable Certificate Account which continues unremedied
for one Business Day following the date on which such deposit was first
required to be made, or (ii) timely make any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade for a
period of one Business Day following the date on which notice shall have
been given to such Master Servicer by the Trustee as provided in Section
4.3(b); or
(iii) any failure on the part of such 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 (other than with respect to the duties, covenants or
agreements contained in Article XIII, for so long as the Trust is subject
to the reporting requirements of the Exchange Act) 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 the Master Servicer to cure such failure; provided, further, that
such cure period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained in
Section 8.20 hereof that materially and adversely affects the interest of
any holder of any Class of Certificates and that continues unremedied for
a period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to 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 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
(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
such Master Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days; or
(vi) such 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) such 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) such Master Servicer ceases to have a master servicer rating
of at least "CMS3" from Fitch, or the Trustee receives written notice from
Fitch to the effect that the continuation of the Master Servicer in such
capacity would result in the downgrade, qualification or withdrawal of any
rating then assigned by Fitch to any Class of Certificates and citing
servicing concerns with such Master Servicer as the sole or a material
factor in such rating action; provided that such Master Servicer shall
have 60 days after removal due to such default within which it may sell
its servicing rights to a party acceptable under this Agreement;
(ix) such Master Servicer is no longer listed on S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer (or, with
respect to NCB, FSB, as a U.S. Commercial Mortgage Servicer), and that
Master Servicer is not reinstated to such status within 60 days; or
(x) subject to Section 13.8, such Master Servicer or any Additional
Servicer or Sub-Servicer appointed by such Master Servicer (other than a
Seller Sub-Servicer), shall fail to deliver any Exchange Act reporting
items required to be delivered by such servicer under Article XIII of this
Agreement at the times required under such Article.
If any Master Servicer is terminated based upon an Event of Default
set forth in clause (viii) or (ix) above, then such Master Servicer shall have
the right to enter into a sub-servicing agreement or primary servicing agreement
with the applicable successor master servicer with respect to all applicable
Mortgage Loans that are not then subject to a Sub-Servicing Agreement or Primary
Servicing Agreement, so long as such terminated Master Servicer is on the
approved select list of commercial mortgage loan servicers maintained by S&P and
has a commercial loan primary servicer rating of at least "CPS3" (or the
equivalent) from Fitch (or obtains a Rating Agency Confirmation from each Rating
Agency as to which such terminated Master Servicer does not satisfy the
applicable rating level described above), and the Operating Adviser has
consented to such Primary Servicing or Sub-Servicing arrangement.
Section 8.29 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by a 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 such 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 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.
(b) On the date specified in a written notice of termination given
to a Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the date
on which a written notice of termination is given to a Master Servicer pursuant
to clause (iii) of Section 8.28(a) 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, unreimbursed Advances or, if the terminated Master
Servicer is NCB, FSB, the Excess Servicing Fee with respect to its Mortgages
Loans and all indemnities and exculpations set forth herein); provided that in
no event shall the termination of such 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 and under the
Primary Servicing Agreements, as set forth in an agreement substantially in the
form hereof, with respect to the Mortgage Loans. 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(b)(v), 8.28(b)(vi)
or 8.28(b)(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 such Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The Master
Servicers agree to cooperate with the Trustee and the Paying Agent in effecting
the termination of a 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 Certificate Account and any other
account or fund maintained or thereafter received with respect to the Mortgage
Loans.
(c) If a Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (viii), (ix) or (x) of Section 8.28(b) or an Event
of Default caused by a default of a Primary Servicer under its Primary Servicing
Agreement, and if such Master Servicer provides the Trustee with the appropriate
"request for proposal" materials within five Business Days after receipt of such
written notice of termination, then the Trustee shall promptly thereafter (using
such "request for proposal" materials provided by such 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, such
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 Qualified Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreements, 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 successor Master
Servicer hereunder. The Trustee shall direct the Successful Bidder to enter into
this Agreement as successor Master Servicer pursuant to the terms hereof, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
a successor Master Servicer within 45 days after the termination of a 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 Master Servicer hereunder in
accordance with Section 8.29(b). During such 45-day period and until the
acceptance of appointment by a successor servicer, the Master Servicer shall
continue to service the Mortgage Loans in accordance with this Agreement.
(g) Notwithstanding anything to the contrary in this Section 8.29,
the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the Primary Servicing Agreements as a condition
precedent to its becoming Master Servicer hereunder.
(h) Any costs and expenses associated with the transfer of the
master servicing function (other than with respect to a termination without
cause) under this Agreement shall be borne by the predecessor Master Servicer
and shall be paid within 30 days of request therefor, otherwise, if the
applicable Master Servicer is terminated without cause, such costs and expenses
shall be payable from the Trust.
Section 8.30 Notification to Certificateholders
(a) Upon any resignation of a Master Servicer pursuant to Section
8.22 or termination of a Master Servicer pursuant to Section 8.28 or appointment
of a successor to the applicable Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default with
respect to a Master Servicer of which a Responsible Officer of the Trustee has
actual knowledge, the Trustee shall transmit by mail to all Holders of
Certificates and each Rating Agency notice of such Event of Default, unless such
Event of Default shall have been cured or waived.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE
SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Certificateholders (and, solely as it relates to a Serviced Loan
Group, for the benefit of each holder of a related Serviced Companion Loan) and
the Trustee, the applicable Special Servicer shall service the Specially
Serviced Mortgage Loans and manage the related REO Properties in accordance with
the provisions of this Agreement and the Servicing Standard. Certain of the
provisions of this Article IX make explicit reference to their applicability to
Mortgage Loans and the Serviced Companion Loans; notwithstanding such explicit
references, references to "Mortgage Loans" contained in this Article IX, unless
otherwise specified, shall be construed to refer also to the related Serviced
Companion 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).
The General Special Servicer shall be the Special Servicer with
respect to all the Mortgage Loans and other assets of the Trust other than the
Co-op Trust Assets and, as such, shall service and administer such of the assets
of the Trust (other than the Co-op Trust Assets) as constitute Specially
Serviced Mortgage Loans and REO Properties and shall render such incidental
services as are required of such Special Servicer with respect to such of the
assets of the Trust (other than the Co-op Trust Assets) as constitute assets
that are not Specially Serviced Mortgage Loans or REO Properties. The Co-op
Special Servicer shall be the Special Servicer with respect to the Co-op Trust
Assets and, as such, shall service and administer such of the Co-op Trust Assets
as constitute Specially Serviced Mortgage Loans or REO Properties and shall
render such incidental services as are required of such Special Servicer with
respect to such of the Co-op Trust Assets as are not Specially Serviced Mortgage
Loans or REO Properties.
(b) Each Special Servicer shall cooperate with the applicable Master
Servicer and provide the applicable 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)
a 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 a Special
Servicer elects to provide such ad hoc reports requested by the applicable
Master Servicer, such Special Servicer may require the applicable Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
A 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 applicable Special Servicer shall send a written notice to
the applicable Master Servicer 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
the applicable Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Mortgage Loan and upon the reasonable request of the applicable 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 applicable Special Servicer rather than the
related Mortgagor. Upon receipt of any such monthly statement, the applicable
Special Servicer shall, within two Business Days, advise the applicable Master
Servicer of any changes to be made, and return the monthly statement to the
applicable 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 or a Serviced Companion Loan if such Serviced
Companion Loan has become a Specially Serviced Mortgage Loan) shall be deposited
in the applicable Certificate Account, and all amounts collected by the General
Master Servicer with respect to a Serviced Companion Loan if such Serviced
Companion Loan has become a Specially Serviced Mortgage Loan shall be deposited
in the Serviced Companion Loan Custodial Account. The applicable Master Servicer
shall within two Business Days after receipt of any such payment, notify the
applicable Special Servicer of the receipt of such payment and the amount
thereof. The applicable Special Servicer shall, within two Business Days
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 Co-Lender Agreement, as
applicable) 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 applicable 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 applicable Special
Servicer has actual knowledge of any event giving rise to a claim under such
Environmental Insurance Policy (an "Insured Environmental Event") and (ii) if
the applicable Special Servicer has actual knowledge of an Insured Environmental
Event with respect to such Mortgage Loan, such 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 as a Servicing
Advance. All extraordinary expenses (but not ordinary and routine or anticipated
expenses) incurred by the applicable 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 the Special Servicers
Each 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 a 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 applicable 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 a Special Servicer (or its
corporate parent) 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 S&P and Fitch, such Special Servicer may self-insure
for the Servicer Fidelity Bond and the Servicer Error and Omissions Insurance
Policy.
Section 9.3 Sub-Servicers
Each 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. The applicable Special Servicer
shall notify the applicable Master Servicer, the Trustee and the Operating
Adviser (and, solely as it relates to a Serviced Loan Group, the holder of the
related Serviced Companion Loan) of the appointment of any Sub-Servicer of such
Special Servicer.
Section 9.4 Special Servicers' General Powers and Duties
(a) Subject to the other terms and provisions of this Agreement
(including, but not limited to, Sections 9.39), the Special Servicer is hereby
authorized and empowered when such 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 the holder of a Serviced
Companion 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 the Powers of
Attorney in the form of Exhibit S-2A and Exhibit S-2B hereto and shall furnish
the applicable Special Servicer from time to time, upon request, with any
additional powers of attorney of the Trust, empowering such 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 such Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as such
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, such 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 such 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 such 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 such 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
applicable Special Servicer shall take such action in the name of such Person or
Persons, in trust for the Trust (or the holder of a Serviced Companion Loan, as
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 the holder of a
Serviced Companion Loan, as applicable). In the performance of its duties
hereunder, the applicable 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 the holder
of a Serviced Companion Loan, as applicable), be deemed to be the agent of the
Trust (or the holder of a Serviced Companion Loan, as applicable). The
applicable Special Servicer shall indemnify the Trustee for any loss, liability
or reasonable expense (including attorneys' fees) incurred by the Trustee or any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of it or its Affiliates in connection with
any negligent or intentional misuse of the foregoing powers of attorney
furnished to such Special Servicer by the Trustee. Such indemnification shall
survive the resignation or termination of a Special Servicer hereunder, the
resignation or termination of the Trustee and the termination of this Agreement.
The applicable Special Servicer shall not have any responsibility or liability
for any act or omission of the Trustee, the applicable Master Servicer or the
Depositor that is not attributable to the failure of such Special Servicer to
perform its obligations hereunder. The applicable 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 applicable Special Servicer
shall employ procedures consistent with the Servicing Standard. The applicable
Special Servicer shall conduct, or cause to be conducted, at the expense of the
Trust, inspections 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 such Special Servicer shall conduct, or cause
to be conducted, inspections of the Mortgaged Properties relating to Specially
Serviced Mortgage Loans at least once during each twelve-month period that ends
on June 30 of any calendar year (commencing with the twelve-month period ending
June 30, 2007); provided, further, that such Special Servicer shall, at the
expense of the Trust, inspect or cause to be inspected each Mortgaged Property
related to a Mortgage Loan that is delinquent for sixty (60) days in the payment
of any amounts due under such Mortgage Loan. The applicable Special Servicer
shall provide to the applicable Master Servicer (who shall provide, solely as it
relates to a Serviced Loan Group, to the holder of the related Serviced
Companion 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 Co-Lender Agreement, the holder of a
Serviced Companion Loan has agreed that the General Master Servicer and the
General Special Servicer are authorized and obligated to service and administer
such Serviced Companion Loan pursuant to this Agreement.
(d) Pursuant to the related Co-Lender Agreement, the holder of each
Serviced Companion Loan has agreed that the General Master Servicer and the
General Special Servicer are authorized and obligated to service and administer
such Serviced Companion Loan pursuant to this Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the General Special Servicer's obligations and responsibilities hereunder and
the General Special Servicer's authority with respect to the Michigan Plaza Pari
Passu Loan and the Royal Airport Office Mortgage Loan are limited by and subject
to the terms of the related Co-Lender Agreement. At such time when a Serviced
Companion Loan is deposited into a different commercial mortgage securitization
(each, an "Other Securitization"), the General Special Servicer shall be
required to consult with the applicable 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 Other Operating Adviser shall have such opportunity to consult
with the General Special Servicer for a period from the date of receipt of the
General 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 General 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 General Special Servicer has been directed to do
otherwise by the Operating Adviser (in which event the General 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
General Special Servicer during the Initial Review Period, is unable to reach
agreement on the proper course of action and notifies the General 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 General Special Servicer
and the Operating Adviser. If the Other Special Servicer and the General Special
Servicer agree on a revised course of action within the Initial Review Period or
the Additional Review Period, then the General 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 General
Special Servicer are unable to agree on the appropriate course of action by the
end of the Additional Review Period, then the General Special Servicer shall
decide, without direction from or consent of or further consultation with such
Other Special Servicer, in accordance with the Servicing Standard set forth in
this Agreement, what course of action to follow. If an Event of Default has
occurred and is continuing with respect to the General Special Servicer under
this Agreement, which Event of Default does not relate to any Mortgage Loan
other than a Serviced Loan Group, then the trustee under the applicable Other
Pooling and Servicing Agreement shall be entitled to direct the Trustee to (a)
terminate the defaulting General Special Servicer solely with respect to such
Serviced Loan Group and (b) appoint a successor special servicer that meets the
eligibility requirements of the applicable Other Pooling and Servicing Agreement
and this Agreement. In such event, the trustee under the applicable Other
Pooling and Servicing Agreement shall exercise its rights set forth in the
preceding sentence at the direction of the certificateholders holding at least
25% of the certificate balance of the certificates issued under the Other
Securitization or the Other Operating Adviser. The replacement of the General
Special Servicer with respect to a Serviced Loan Group, 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 applicable Other Pooling and Servicing Agreement.
Section 9.5 [Reserved]
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 a 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 Specially Serviced Mortgage Loan, such Special
Servicer will within 2 Business Days notify the applicable Master Servicer. The
applicable Special Servicer shall determine, in accordance with the Servicing
Standard, whether an instrument of satisfaction shall be delivered and, if such
Special Servicer determines that such instrument should be delivered, such
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 applicable 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 such Special Servicer. After the transfer of servicing with
respect to any Specially Serviced Mortgage Loan to the applicable 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 applicable Special Servicer, of such transfer.
(c) Reserved.
(d) The applicable Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the applicable Master Servicer all
documents and instruments in the possession of such Special Servicer related to
such Rehabilitated Mortgage Loan. Prior to the transfer of servicing with
respect to any Rehabilitated Mortgage Loan to the applicable Master Servicer in
accordance with the Servicing Standard, the applicable Special Servicer shall
notify, in writing, each Mortgagor under each Rehabilitated Mortgage Loan of
such transfer.
Section 9.7 Documents, Records and Funds in Possession of the
Special Servicers to Be Held for the Trustee
(a) Each Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of such Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the applicable Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by the applicable Special Servicer as Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds in respect of any Specially Serviced
Mortgage Loan or any REO Property shall be remitted to the applicable Master
Servicer within two Business Days of receipt for deposit into the applicable
Certificate Account, except that if such amounts relate to REO Income, they
shall be deposited in the applicable REO Account. The applicable Special
Servicer shall provide access to information and documentation regarding the
Specially Serviced Mortgage Loans to the Trustee, the applicable Master
Servicer, the Paying Agent, the Operating Adviser and their respective agents
and accountants at any time upon reasonable written request and during normal
business hours, provided that such Special Servicer shall not be required to
take any action or provide any information that such 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 applicable 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
applicable Special Servicer shall not be responsible for determining whether
such information is sufficient for the Trustee's, the applicable Master
Servicer's, the Paying Agent's or the Operating Adviser's purposes.
(b) Each Special Servicer hereby acknowledges that the Trust
(and/or, if in connection with a Serviced Loan Group, the holder of the related
Serviced Companion Loan) 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, such Special Servicer that
are collected by such Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which such Special Servicer is entitled hereunder); and such 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, such Special Servicer, shall be held by such Special Servicer for
and on behalf of the Trust (or each holder of a Serviced Companion Loan, as
applicable).
(c) Each Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that are
required to be deposited in any REO Account to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, nor assert by
legal action or otherwise any claim or right of setoff against any Specially
Serviced Mortgage Loan or any funds, collected on, or in connection with, a
Specially Serviced Mortgage Loan.
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers
(a) LNR Partners, Inc., in its capacity as the General Special
Servicer, hereby represents and warrants to and covenants with the Trustee, the
Paying Agent, as of the Closing Date:
(i) the General Special Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Florida, and the General Special Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) the execution and delivery of this Agreement by the General
Special Servicer, and the performance and compliance with the terms of
this Agreement by the General Special Servicer, will not violate the
General Special Servicer's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets which default or breach in the
reasonable judgment of the General Special Servicer, is likely to affect
materially and adversely either the ability of the General Special
Servicer to perform its obligations under this Agreement or the financial
condition of the General Special Servicer;
(iii) the General Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the General Special Servicer, enforceable
against the General Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) the General Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the General Special Servicer's
reasonable judgment, is likely to affect materially and adversely either
the ability of the General Special Servicer to perform its obligations
under this Agreement or the financial condition of the General Special
Servicer;
(vi) no litigation is pending or, to the best of the General Special
Servicer's knowledge, threatened against the General Special Servicer the
outcome of which, in the General Special Servicer's reasonable judgment,
could reasonably be expected to prohibit the General Special Servicer from
entering into this Agreement or that, in the General Special Servicer's
reasonable judgment, is likely to materially and adversely affect the
ability of the General Special Servicer to perform its obligations under
this Agreement;
(vii) the General Special Servicer has errors and omissions
insurance coverage which is in full force and effect and complies with the
requirements of Section 9.2 hereof; and
(viii) no consent, approval, authorization or order, 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 the General Special Servicer with this Agreement, or the
consummation by the General Special Servicer of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings, or notices as have
been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the General Special
Servicer under this Agreement.
(b) The Co-op Special Servicer, hereby represents and warrants to
and covenants with the Trustee and the Paying Agent as of the Closing Date:
(i) The Co-op Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the United States,
and the Co-op Special Servicer is 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.
(ii) The Co-op Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Co-op Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the good faith
and reasonable judgment of the Co-op Special Servicer, is likely to affect
materially and adversely either the ability of the Co-op Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Co-op Special Servicer.
(iii) The Co-op Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Co-op Special
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Co-op Special Servicer, enforceable against
the Co-op Special Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(v) The Co-op Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand of
any federal, state or local governmental or regulatory authority, which
violation, in the Co-op Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Co-op Special Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Co-op Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material
adverse effect on the ability of the Co-op Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the Co-op Special
Servicer's knowledge, threatened against the Co-op Special Servicer the
outcome of which, in the Co-op Special Servicer's good faith and
reasonable judgment, could reasonably be expected to prohibit the Co-op
Special Servicer from entering into this Agreement or materially and
adversely affect the ability of the Co-op Special Servicer to perform its
obligations under this Agreement.
(viii) The Co-op Special Servicer has errors and omissions insurance
as required by Section 9.2.
(ix) As of the Closing Date, the Co-op Special Servicer is not a
party to any sub-servicing agreement providing for the performance of
duties of the Co-op Special Servicer by any Sub-Servicer with respect to
any Co-op Mortgage Loans or related REO Properties.
(c) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(d) Any cause of action against the applicable 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 such Special Servicer
by any of the Trustee, the applicable Master Servicer or the Paying Agent. A
Special Servicer shall give prompt notice to the Trustee, the Paying Agent, the
Depositor, the Operating Adviser and the applicable Master Servicer of the
occurrence, or the failure to occur, of any event that, with notice, or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies
(a) For all REO Property, the applicable Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain with a
Qualified Insurer a Standard Hazard Insurance Policy 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 and each Serviced Companion Loan, whichever is
less, but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause. 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 applicable 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 applicable Special Servicer has no obligation to obtain earthquake or
other additional insurance on REO Property, except as required by law and,
nevertheless, at its sole discretion and at the Trust's expense, it (if required
at origination and is available at commercially reasonable rates) may obtain
such earthquake insurance. The applicable Special Servicer shall use its
reasonable efforts, consistent with the Servicing Standard, to obtain a
comprehensive general liability insurance policy for all REO Properties. The
applicable Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by such 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 $1,000,000 per occurrence. All applicable policies required to be
maintained by the applicable Special Servicer pursuant to this Section 9.9(a)
shall name the Trustee as loss payee. The costs of such insurance shall be paid
by the applicable Master Servicer as a Servicing Advance pursuant to Section
4.2, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the applicable 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 applicable Special Servicer shall
not be required in any event to maintain or obtain insurance coverage beyond
what is reasonably available at commercially reasonable rates consistent with
the Servicing Standard. The applicable Special Servicer shall notify the Trustee
of any such determination.
The applicable Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
applicable Special Servicer shall have obtained and maintained a master force
placed or blanket insurance policy insuring against hazard losses on all of the
applicable REO Property serviced by it, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers consistent
with the Servicing Standard, and provided that such policy is issued by a
Qualified Insurer or (ii) if the applicable Special Servicer (or its corporate
parent) self-insures for its obligations, provided that the rating of such
Person's long-term debt is not less than "A" by S&P and Fitch. In the event that
the applicable Special Servicer shall cause any REO Property to be covered by
such a master force placed or blanket insurance policy, the incremental cost of
such insurance allocable to such REO Property (i.e., other than any minimum or
standby premium payable for such policy whether or not any REO Property is then
covered thereby), shall be paid by the applicable Special Servicer, at its
option, or by the applicable Master Servicer, as a Servicing Advance, subject to
the provisions of Section 4.4 hereof. If such policy contains a deductible
clause, the applicable Special Servicer shall, if there shall not have been
maintained on the related REO Property a policy complying with this Section 9.9
and there shall have been a loss that would have been covered by such policy,
deposit in the applicable Certificate Account the amount not otherwise payable
under such master force placed or blanket insurance policy because of such
deductible clause to the extent that such deductible exceeds (i) the deductible
under the related Mortgage Loan (or Serviced Companion 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 REO 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 REO Properties, the applicable 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 applicable 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 applicable Special Servicer in respect of such
policies shall be promptly remitted to the applicable 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 applicable 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
Servicers shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. The applicable Special Servicer
shall be entitled to receive a Liquidation Fee from the proceeds received in
connection with a full or partial liquidation (net of related costs and expenses
of such liquidation) of a Specially Serviced Mortgage Loan or REO Property
(whether arising pursuant to a sale, condemnation, casualty 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 applicable Special Servicer to a
Liquidation Fee from the Liquidation Proceeds received in connection with a
final disposition of, and Condemnation Proceeds or Insurance Proceeds received
in connection with, each such acquired property as the Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds related to that property are
received.
(b) The applicable 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 and
(ii) from the Serviced Companion Loan Custodial Account, to the extent solely
related to a Serviced Companion Loan, in the time and manner set forth in
Section 5.2 of this Agreement. The applicable 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 payable at a rate above the Mortgage Rate (net of amounts used to pay
Advance Interest, Additional Trust Fund Expenses, Special Servicing Fees,
Liquidation Fees and Workout Fees relating to the subject Mortgage Loan as
provided in Section 4.5) 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 applicable Special Servicer, to the extent not
required to be deposited in the applicable Certificate Account pursuant to the
terms of this Agreement. The applicable Special Servicer shall also be permitted
to receive such compensation as set forth in Section 5.2(a)(ii), to the extent
provided for herein from funds paid by the applicable Mortgagor. To the extent
any component of applicable Special Servicer Compensation is in respect of
amounts usually and customarily paid by Mortgagors, such Special Servicer shall
use reasonable good faith efforts to collect such amounts from the related
Mortgagor, and to the extent so collected, in full or in part, such 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 applicable Special Servicer, in accordance with the
Servicing Standard and subject to Sections 9.4(a), 9.36 and 9.39, 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 applicable Special Servicer shall follow the Servicing Standard.
(b) The applicable 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
applicable Special Servicer; or
(ii) the applicable 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 such REMIC Pool under
the Code or cause such REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
applicable 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 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 such 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 such Special Servicer) who regularly conducts environmental
site assessments in accordance with the standards of FNMA in the case of
multi-family mortgage loans and customary servicing practices in the case of
commercial loans for environmental assessments, which report shall be delivered
to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental
expert that taking such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably
likely to produce a greater recovery on a net present value basis than
pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or threatened
at such Mortgaged Property relating to the use, management, disposal or
release of any hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials for which investigation, testing,
monitoring, removal, clean-up or remediation could be required under any
federal, state or local law or regulation, or that, if any such materials
are present for which such action could be required, after consultation
with an environmental expert taking such actions with respect to the
affected Mortgaged Property is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions (after
taking into account the projected costs of such actions); provided,
however, that such compliance pursuant to clause (i) and (ii) above or the
taking of such action pursuant to this clause (iii) shall only be required
to the extent that the cost thereof is a Servicing Advance of the
applicable Master 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 applicable Special Servicer shall use its good faith
reasonable business efforts to recover such cost from the Mortgagor.
(e) If the applicable 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 such Special Servicer shall take such action as it deems to be in
the best economic interest of the Trust (or, if in connection with a Serviced
Loan Group, in the best economic interests of the Trust and the holder of the
related Serviced Companion Loan, as a collective whole), including, without
limitation, releasing the lien of the related Mortgage. If the applicable
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, such Special Servicer shall not
attempt to bring such Mortgaged Property into compliance and shall not acquire
title to such Mortgaged Property unless it has received the written consent of
the Trustee to such action.
Notwithstanding any provision of this Agreement to the contrary, the
applicable Special Servicer shall not foreclose on any Mortgaged Property in
anticipation of pursuing a claim under the related Environmental Insurance
Policy, unless the applicable Special Servicer shall have first reviewed such
Environmental Insurance Policy.
(f) The applicable 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
applicable Special Servicer, as its agent, shall direct the appropriate party to
deliver title to the REO Property to the Trustee or its nominee.
The applicable 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 applicable Special
Servicer, on behalf of the Trust (and, if in connection with a Serviced Loan
Group, the holder of the related Serviced Companion Loan), 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
applicable Special Servicer shall manage, conserve, protect and operate the REO
Property for the holders of beneficial interests in the Trust (and, if in
connection with a Serviced Loan Group, the holder of the Michigan Plaza
Companion Loan) solely for the purpose of its prompt disposition and sale.
Section 9.14 Operation of REO Property
(a) Each 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, if in connection with a Serviced
Loan Group, the holder of the related Serviced Companion Loan) in the name of
"LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates Series 2006-IQ11 and the holders of the Serviced
Companion Loans, as their interests may appear" (each, an "REO Account"), which
shall be an Eligible Account. Amounts in any REO Account shall be invested in
Eligible Investments. The Special Servicers shall deposit all funds received
with respect to an REO Property in the applicable REO Accounts within two days
of receipt. The Special Servicers 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 Servicers 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.
(b) On or before 2:00 p.m. on each Special Servicer Remittance Date,
the applicable Special Servicer shall withdraw from the applicable REO Account
and remit to the Master Servicer for deposit in the applicable 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; provided, however, that (i) the applicable
Special Servicer may retain in such REO Account such portion of such proceeds
and collections as may be necessary to maintain in such 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 applicable Special Servicer shall notify the applicable Master
Servicer of all such remittances (and the REO Properties to which the
remittances relate) made into the applicable Certificate Account and (ii) the
applicable 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 applicable REO Account. The
amount of any losses incurred in respect of any such investments shall be for
the account of the applicable Special Servicer which shall deposit the amount of
such loss (to the extent not offset by income from other investments) in the
applicable REO Account, out of its own funds immediately as realized. If the
applicable Special Servicer deposits in any REO Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such REO
Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the applicable
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 or consent rights of the holder
of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to
the related Co-Lender Agreement or otherwise)) 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 applicable Special Servicer
deems to be in the best interest of the Trust (or, with respect to a Serviced
Loan Group, in the best interests of the Trust and the holder of the related
Serviced Companion Loan, 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(d)), 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 applicable Special Servicer may, and to the extent necessary
to (i) preserve the status of the REO Property as "foreclosure property" under
the REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulations 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 applicable 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 applicable
Special Servicer, the consent of the Operating Adviser and a
Nondisqualification Opinion must be obtained; and
(vi) the applicable 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.
(e) The applicable Special Servicer shall be entitled to enter into
any agreement with any Independent Contractor performing services for the Trust
(and, if applicable, the holders of the Serviced Companion Loans) pursuant to
this subsection (d) for indemnification of such 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 such 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 as a Servicing Advance, subject to the provisions of Section 4.4 and
Section 4.6(d) hereof.
(f) Notwithstanding any other provision of this Agreement, the
Special Servicers 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 applicable Special Servicer have
received an Opinion of Counsel (at the Trust's sole expense) to the effect that,
under the REMIC Provisions and any relevant proposed legislation, any income
generated for REMIC I by the REO Property would not result in the imposition of
a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the
applicable Special Servicer determines the income or earnings with respect to
such REO Property will offset any tax under the REMIC Provisions relating to
such income or earnings and will maximize the net recovery from the REO Property
to the Certificateholders. The applicable Special Servicer shall notify the
Trustee, the Paying Agent and the applicable Master Servicer of any election by
it to incur such tax, and such 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 applicable
Special Servicer and pay the applicable tax from the amounts collected by such
Special Servicer.
Subject to, and without limiting the generality of the foregoing,
the applicable 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 applicable
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 applicable 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 applicable Special Servicer, after notice to the Operating
Adviser, shall sell any REO Property as soon as practicable consistent with the
objective of maximizing proceeds for all Certificateholders (and, with respect
to a Serviced Loan Group, for the Certificateholders and the holder of the
related Serviced Companion Loan, 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 Final Rated Distribution Date, 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 applicable
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 applicable Special Servicer seeks and subsequently
receives, at the expense of the Trust, a Nondisqualification Opinion, addressed
to the Trustee and such 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
the related 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 applicable Special Servicer is not able to sell
such REO Property within the period specified above, or if an Extension has been
granted and the applicable Special Servicer is unable to sell such REO Property
within the extended time period, the applicable Special Servicer shall, after
consultation with the Operating Adviser, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the applicable Special Servicer) in accordance with the
Servicing Standard; provided, however, that if an Interested Person intends to
bid on the REO Property, (i) the applicable Special Servicer (or, if such
Interested Person is the applicable Special Servicer or an Affiliate of the
applicable Special Servicer, 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 (ii) the Interested
Person shall not bid less than the fair market value set forth in such
Appraisal. The Depositor may not purchase REO Property at a price in excess of
the fair market value thereof.
Notwithstanding the foregoing, no Interested Person shall be
permitted to purchase the REO Property at a price less than an amount equal to
the fair value of the REO Property, as determined by the applicable Special
Servicer (or, if such Interested Person is the applicable Special Servicer or an
Affiliate of the applicable Special Servicer, the Trustee). Prior to the
applicable Special Servicer's or Trustee's, as applicable, determination of fair
value referred to above, the fair value of an REO Property shall be deemed to be
an amount equal to the Purchase Price. The applicable Special Servicer or
Trustee, as applicable, shall determine the fair value of an REO Property as
soon as reasonably practical after receipt of notice of an Interested Party's
desire to purchase such REO Property, and such Special Servicer or Trustee, as
applicable, shall promptly notify such Interested Party (and the Trustee, if
applicable) of the fair value. The applicable Special Servicer or Trustee, as
applicable, is required to recalculate the fair value of the REO Property if
there has been a material change in circumstances or the applicable Special
Servicer or Trustee, as applicable, has received new information (including the
receipt of a third party bid to purchase the REO Property), either of which has
a material effect on the fair value, provided that such Special Servicer or
Trustee, as applicable, shall be required to recalculate the fair value of the
REO Property if the time between the date of last determination of the fair
value of the REO Property and the date of the purchase of the REO Property by
such Interested Party has exceeded 60 days. Upon any recalculation, the
applicable Special Servicer or Trustee, as applicable, shall be required to
promptly notify in writing such Interested Party (and the Trustee, if
applicable) of the revised fair value. In determining fair value, the applicable
Special Servicer or Trustee, as applicable, 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; the physical condition of the REO Property; the
state of the local economy; any other bids received with respect to the REO
Property; 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 (and, with respect to a Serviced Loan Group, for the
Certificateholders and the holder of the related Serviced Companion Loan, as a
collective whole), but in no event later than the three-year period (or such
extended period) specified in this Section 9.15. In performing its obligations
under this Section 9.15(a), each Special Servicer or the Trustee, as applicable,
may, at the expense of the party desiring to purchase the REO Property, engage
an appraiser or other expert in real estate matters to determine the fair value
of an REO Property and may rely conclusively upon such Person's determination,
which determination shall take into account the factors set forth in the
preceding sentence. Any sale of REO Property related to the Royal Airport Office
Loan Group shall be subject to and in accordance with the related Co-Lender
Agreement.
(b) Within 30 days of the sale of the REO Property, the applicable
Special Servicer shall provide to the Trustee, the Paying Agent and the
applicable Master Servicer (and, if in connection with a Serviced Loan Group,
the holder of the related Serviced Companion Loan) 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, if in connection with
a Serviced Loan Group, the holder of the related Serviced Companion Loan) may
reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the applicable Certificate Account within one
Business Day of receipt.
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 applicable 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 applicable Special Servicer and the Trustee (the cost of which shall be
an expense of the Trust) take any action that could result in the failure of any
REMIC Pool to qualify as a REMIC while any Certificates are outstanding, unless
such action has been approved by a vote of 100% of each Class of
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders).
Section 9.17 [Reserved]
Section 9.18 [Reserved]
Section 9.19 [Reserved]
Section 9.20 Merger or Consolidation
Any Person into which a Special Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which such Special Servicer shall be a party, or any
Person succeeding to substantially all of the servicing business of such Special
Servicer, shall be the successor of such 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, as to any such succession with respect to
the General Special Servicer, with respect to any securities rated by a Rating
Agency evidencing interest in a Serviced Companion Loan). If the conditions to
the proviso in the foregoing sentence are not met, the Trustee may terminate,
and if the conditions to the proviso in the following paragraph are not met, the
Trustee shall terminate, such 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.
Notwithstanding the foregoing, for so long as the Trust is subject
to the reporting requirements of the Exchange Act, neither Special Servicer may
remain a Special Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, except to the extent (i) such Special Servicer is the
surviving entity of such merger, consolidation or transfer or (ii) the Depositor
consents to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld.
Section 9.21 Resignation of the Special Servicer
(a) Except as otherwise provided in Section 9.20 or this Section
9.21, a Special Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that such 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 a Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the applicable
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) assumed such Special Servicer's
responsibilities and obligations under this Agreement and (ii) Rating Agency
Confirmation (including with respect to any securities rated by a Rating Agency
evidencing interest in a Serviced Companion Loan) shall have been obtained.
Notice of such resignation shall be given promptly by the applicable Special
Servicer to the applicable Master Servicer, the Trustee and the Paying Agent.
(b) A Special Servicer may resign from the obligations and duties
hereby imposed on it, upon 30 days notice to the Trustee and the Paying Agent,
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 applicable 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 applicable Special Servicer and shall not
be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the applicable Special Servicer hereunder in form and
substance reasonably satisfactory to the Trustee.
(d) Upon any resignation or termination of a Special Servicer, it
shall retain the right to receive any and all Work-Out Fees payable in respect
of (i) Mortgage Loans (and the Serviced Companion Loans, as applicable) for
which it acted as Special Servicer 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 or termination or
(ii) any Specially Serviced Mortgage Loan for which such Special Servicer has
cured the event of default under such Specially Serviced Mortgage Loan through a
modification, restructuring or workout negotiated by such Special Servicer and
evidenced by a signed writing, but which had not as of the time such Special
Servicer was terminated, become a Rehabilitated Mortgage Loan solely because it
had not been a performing loan for 90 consecutive days and which subsequently
becomes a Rehabilitated Mortgage Loan as a result of the loan being a performing
loan for such 90 consecutive day period (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 (or the Serviced Companion Loans) again
becomes a Specially Serviced Mortgage Loan or are no longer included in the
Trust or if the related Mortgaged Property becomes an REO Property.
Section 9.22 Assignment or Delegation of Duties by the Special
Servicers
Each 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 such 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 such Special Servicer hereunder
or (B) assign and delegate all of its duties hereunder to a single Person. In
the case of any such assignment and delegation in accordance with the
requirements of clause (A) of this Section, such 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 applicable Special Servicer shall be released from its
obligations under this Agreement, except that such Special Servicer shall remain
liable for all liabilities and obligations incurred by it as such Special
Servicer hereunder prior to the satisfaction of the following conditions: (i)
such Special Servicer gives the Depositor, the applicable Master Servicer, the
Operating Adviser 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 such 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, a Special Servicer may
appoint Sub-Servicers in accordance with Section 9.39 hereof.
Section 9.23 Limitation on Liability of the Special Servicers and
Others
(a) Neither any Special Servicer nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of such Special Servicer shall be under any liability to the
Certificateholders, the holders of the Serviced Companion Loans or the Trustee
for any action taken or for refraining from the taking of any action in good
faith and using reasonable business judgment, consistent with the Servicing
Standard; provided that this provision shall not protect a Special Servicer or
any such Person against any breach of a representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties hereunder or
by reason of negligent disregard of obligations and duties hereunder. The
Special Servicers and any partner, representative, Affiliate, member, manager,
director, officer, employee or agent of the Special 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 information and reports delivered
by or at the direction of the applicable Master Servicer or any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of the applicable Master Servicer) respecting any matters arising hereunder. A
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 such 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 holders of the Serviced Companion Loans
and the Trustee in the Specially Serviced Mortgage Loans. In such event, all
legal expenses and costs of such action (other than those that are connected
with the routine performance by a Special Servicer of its duties hereunder)
shall be expenses and costs of the Trust, and a Special Servicer shall be
entitled to be reimbursed therefor as provided by Section 5.2 hereof.
Notwithstanding any term in this Agreement, a Special Servicer shall not be
relieved from the requirement that it act in accordance with the Servicing
Standard by virtue of taking any action at the direction of the Operating
Adviser and shall not be relieved from liability otherwise imposed on the
Special Servicers pursuant to Section 6.3 of this Agreement.
(b) In addition, a 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 such Special Servicer and conforming to the requirements
of this Agreement. Neither of the Special Servicers, nor any partner,
representative, Affiliate, member, manager, director, officer, employee or
agent, shall be personally liable for any error of judgment made in good faith
by any officer, unless it shall be proved that such Special Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Special
Servicers, nor any partner, representative, Affiliate, member, manager,
director, officer, employee or agent, shall be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement. A Special Servicer shall be entitled to rely on reports and
information supplied to it by the applicable Master Servicer and the related
Mortgagors and shall have no duty to investigate or confirm the accuracy of any
such report or information.
(c) A 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 applicable Master Servicer or the Trustee in this Agreement. The
Trust shall indemnify and hold harmless such 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) a Special Servicer may rely, and shall be protected in acting or
refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document (in paper or electronic format) 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 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) a 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) a 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 (in paper or
electronic format) reasonably believed or in good faith believed by it to
be genuine.
(e) Each Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of such Special
Servicer shall be indemnified by the applicable Master Servicer, the Trustee and
the Paying Agent, as the case may be, and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to the applicable Master
Servicer's, the Trustee's or the Paying Agent's, as the case may be, respective
willful misfeasance, bad faith or negligence in the performance of its
respective duties hereunder or by reason of negligent disregard by such Person
of its respective duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of such Special Servicer's duties hereunder or by reason of
negligent disregard of such Special Servicer's obligations and duties hereunder.
Each Special Servicer shall promptly notify the applicable Master Servicer, the
Trustee and the Paying Agent, if a claim is made by a third party entitling a
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 such Special Servicer). Any failure to so notify the applicable Master
Servicer, the Trustee or the Paying Agent, shall not affect any rights a 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 a Special
Servicer. Such indemnity shall survive the termination of this Agreement or the
resignation or removal of such Special Servicer hereunder. Any payment hereunder
made by the applicable Master Servicer, the Trustee or the Paying Agent, as the
case may be, pursuant to this paragraph to the applicable Special Servicer shall
be paid from the applicable Master Servicer's, the Trustee's or the Paying
Agent's, as the case may be, own funds, without reimbursement from the Trust
therefor, except achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent or the 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 or the applicable Master Servicer, as the case may
be, was not culpable of willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or of negligent disregard of its
respective duties hereunder or the indemnified party is found to have acted with
willful misfeasance, bad faith or negligence.
Section 9.24 Indemnification; Third-Party Claims
(a) Each Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of each such
Special Servicer shall be indemnified by the Trust, and held harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action or claim relating to (i) this
Agreement, any Mortgage Loan, any REO Property or the Certificates or any
exercise of any right under this Agreement, and (ii) any action taken by such
Special Servicer in accordance with the instruction delivered in writing to such
Special Servicer by the Trustee or the applicable Master Servicer pursuant to
any provision of this Agreement, and such Special Servicer and each of its
partners, representatives, Affiliates, members, managers, directors, officers,
employees or agents shall in each case be entitled to indemnification from the
Trust for any loss, liability or expense (including attorneys' fees) incurred in
connection with the provision by such Special Servicer of any information
included by such Special Servicer in the report required to be provided by such
Special Servicer pursuant to this Agreement, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder. The applicable Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to such
Special Servicer) and the Trust shall pay, from amounts on deposit in the
applicable Certificate Account pursuant to Section 5.2, all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of such Special
Servicer. Any expenses incurred or indemnification payments made by the Trust
shall be reimbursed by such Special Servicer, if a court of competent
jurisdiction makes a final, non-appealable judgment that such Special Servicer
was found to have acted with willful misfeasance, bad faith or negligence.
Notwithstanding the foregoing, if such loss, liability or expense relates
specifically to a Serviced Companion Loan, then such indemnification shall be
paid out of collections on, and other proceeds of, such Serviced Companion Loan.
(b) Each Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of the Trustee, the Depositor and the
applicable Master Servicer, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that the Trust or the
Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may
sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of such Special Servicer's duties hereunder or by
reason of negligent disregard of such Special Servicer's obligations and duties
hereunder by such Special Servicer. The Trustee, the Depositor, the Paying Agent
or the applicable Master Servicer shall immediately notify such Special Servicer
if a claim is made by a third party with respect to this Agreement or the
Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the
Depositor, the Paying Agent or the applicable Master Servicer, as the case may
be, to indemnification hereunder, whereupon such Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Trustee, 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
such Special Servicer shall not affect any rights the Trust or the Trustee, the
Depositor, the Paying Agent or the applicable Master Servicer may have to
indemnification under this Agreement or otherwise, unless 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 such Special Servicer, the Paying Agent or the
Trustee. Any expenses incurred or indemnification payments made by such 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 such
Special Servicer was not culpable of willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or of negligent
disregard of its respective duties hereunder or the indemnified party is found
to have acted with willful misfeasance, bad faith or negligence.
(c) Each initial applicable Special Servicer and the Depositor
expressly agree that the only information furnished by or on behalf of such
Special Servicer for inclusion in the Preliminary Prospectus Supplement and the
Final Prospectus Supplement is the information set forth in the paragraphs under
the caption (i) "TRANSACTION PARTIES--The Special Servicers--The General Special
Servicer," with respect to the General Special Servicer, and (ii) "TRANSACTION
PARTIES--The Special Servicers--National Consumer Cooperative Bank," with
respect to the Co-op Special Servicer, of the Preliminary Prospectus Supplement
and Final Prospectus Supplement.
Section 9.25 Reserved
Section 9.26 Special Servicers May Own Certificates
A Special Servicer or any agent of such 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 a Special
Servicer or such agent. Any such interest of a Special Servicer or such agent in
the Certificates shall not be taken into account when evaluating whether actions
of such 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 such Special Servicer.
Section 9.27 Tax Reporting
The Special Servicers shall notify the Master Servicers of (i) any
abandoned Mortgaged Property, (ii) any foreclosure upon a Mortgaged Property or
(iii) any indebtedness that is forgiven, which require reporting to the IRS. The
Special Servicers shall provide the necessary information to the Master
Servicers 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. The Special Servicers
shall provide to the Master Servicers copies of any such reports. The Master
Servicers shall forward such reports to the Trustee and the Paying Agent.
Section 9.28 Application of Funds Received
It is anticipated that the Master Servicers will be collecting all
payments with respect to the Mortgage Loans and the Serviced Companion Loans
(other than payments with respect to REO Income). If, however, a Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income), it shall, within two Business Days 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), forward such payment (endorsed, if
applicable, to the order of the applicable Master Servicer) to the applicable
Master Servicer. Such 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 Servicers shall act in accordance with this Agreement
and the provisions of the Code relating to REMICs in order to create or maintain
the status of any REMIC Pool as a REMIC under the Code or, as appropriate,
cooperate with the Trustee to adopt a plan of complete liquidation. The Special
Servicers shall not take any action or (A) cause any REMIC Pool to take any
action that would (i) endanger the status of any REMIC Pool as a REMIC or the
status of the Class EI Grantor Trust as a grantor trust 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
Section 860F(a)(2) of the Code or on prohibited contributions pursuant to
Section 860G(d) of the Code) or (B) cause the Class EI Grantor Trust to take any
action that could (i) endanger its status as a grantor trust or (ii) result in
the imposition of any tax upon the Class EI Grantor Trust unless the Master
Servicers 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 Servicers shall comply with the provisions of Article XII
hereof.
Section 9.30 Termination
(a) The obligations and responsibilities of the Special Servicers
created hereby (other than the obligation of such Special Servicers to make
payments to the applicable Master Servicer as set forth in Section 9.28 and the
obligations of such Special Servicers 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 Special Servicers that this Agreement is terminated pursuant to Section
9.30(b) or 9.30(c), respectively; and (iii) the effective date of any
resignation of a Special Servicer effected pursuant to and in accordance with
Section 9.21 or delegation of such Special Servicer's duties pursuant to clause
B of Section 9.22 (but only to the extent specifically set forth in Section
9.22).
(b) The Trustee may terminate (or, with respect to clause (x) below,
at the direction of the Depositor, shall terminate) a Special Servicer in the
event that (i) the Special Servicer has failed to remit any amount required to
be remitted to the Trustee, the applicable Master Servicer, the Paying Agent or
the Depositor within one Business Day following the date such amount was
required to have been remitted under the terms of this Agreement, (ii) such
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) such Special Servicer
has failed to duly observe or perform in any material respect any of the other
covenants or agreements of such Special Servicer set forth in this Agreement
(other than, subject to Section 13.14(c), the covenants or agreements set forth
in Article XIII, for so long as the Trust is subject to the reporting
requirements of the Exchange Act), and such 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 such
Special Servicer by the Depositor or the Trustee, provided, however, that if
such Special Servicer certifies to the Trustee and the Depositor that such
Special Servicer is in good faith attempting to remedy such failure, and the
Certificateholders would not be affected thereby, such cure period will be
extended to the extent necessary to permit such Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iv)
such 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 such Special Servicer by the Depositor or the Trustee, provided,
however, that if such Special Servicer certifies to the Trustee and the
Depositor that such Special Servicer is in good faith attempting to remedy such
failure, such cure period may be extended to the extent necessary to permit such
Special Servicer to cure such failure; provided, however, that such cure period
may not exceed 90 days; (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 such
Special Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; (vi) such 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 such
Special Servicer or of or relating to all or substantially all of its property;
(vii) such Special Servicer thereof shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing;
(viii) such Special Servicer ceases to have a special servicer rating of at
least "CSS3" from Fitch, or the Trustee receives written notice from Fitch that
the continuation of the Special Servicer in such capacity would result in the
downgrade, qualification or withdrawal of the then current rating then assigned
by Fitch to any class of certificates and citing servicing concerns with such
Special Servicer as the sole or a material factor in such rating action, and
such notice is not rescinded within 60 days; (ix) such 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 to such status within 60 days or (x) for
so long as the Trust is subject to the reporting requirements of the Exchange
Act, such Special Servicer, or any Sub-Servicer or Additional Servicer appointed
by such Special Servicer (other than a Seller Sub-Servicer), shall fail to
deliver any Exchange Act reporting items required to be delivered by such
servicer under Article XIII of this Agreement at the times required under such
Article. Such termination shall be effective on the date after the date of any
of the above events that the Trustee specifies in a written notice to such
Special Servicer specifying the reason for such termination. 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 a Special Servicer, with or without cause, provided that the
Operating Adviser shall appoint a successor Special Servicer who will 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 such terminated 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 interest in a Serviced Companion Loan) from
each Rating Agency prior to the termination of such Special Servicer. A 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)). The Special
Servicer being terminated shall execute and deliver such document acknowledging
its termination as may be reasonably required by any Rating Agency.
(d) Any costs and expenses associated with the transfer of the
special servicing function (other than with respect to a termination without
cause) under Section 9.30(b) shall be borne by the predecessor Special Servicer
and shall be paid within 30 days of request therefor, otherwise, if the
applicable Special Servicer is terminated without cause, such costs and expenses
shall be payable from the Trust, if the terminating party is the Trustee or the
Depositor, or the Operating Adviser, if the Operating Adviser is the terminating
party.
Section 9.31 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i)(B) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the applicable Special Servicer to the
Trustee and the Paying Agent no later than the later of (i) five Business Days
after the liquidation of the last REO Property 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 applicable Special Servicer (other
than the rights and duties of the applicable Special Servicer pursuant to
Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall terminate and the applicable
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 a Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of such 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 such Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded such Special Servicer as successor Special Servicer, notified such
Special Servicer of such designation, and such successor Special Servicer shall
have assumed such 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 such Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of a Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicers, 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.
Each Special Servicer agrees to cooperate with the Trustee in effecting the
termination of a 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 such
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 applicable Special Servicer in the applicable
REO Account and any other account or fund maintained or thereafter received with
respect to the Specially Serviced Mortgage Loans.
(c) Upon any resignation of a Special Servicer pursuant to Section
9.21 or termination of a Special Servicer pursuant to Section 9.30 or
appointment of a successor to the applicable Special Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register, to the holders of each Serviced
Companion Loan and to each Rating Agency.
Within 30 days after the occurrence of any Event of Default with
respect to a Special Servicer of which a Responsible Officer of the Trustee has
actual knowledge, the Trustee shall transmit by mail to all Certificateholders,
the holders of each Serviced Companion Loan and each Rating Agency notice of
such Event of Default, unless such Event of Default shall have been cured or
waived.
Section 9.32 Certain Special Servicer Reports
(a) The Special Servicers, for each Specially Serviced Mortgage
Loan, shall provide to the applicable Master Servicer by 2:00 p.m. (New York
time) on the date that is one Business Day after the Determination Date for each
month, the CMSA Special Servicer Loan File in such electronic format as is
mutually acceptable to each applicable Master Servicer and each applicable
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.
(b) The Special Servicers 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 Servicers shall provide to the applicable Master
Servicer or the Paying Agent at the reasonable request in writing of such 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 the applicable
Master Servicer or the Paying Agent to comply with its obligations under this
Agreement; provided that the applicable Special Servicer shall not be required
to take any action or provide any information that the applicable 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 applicable Special Servicer at the reasonable request of the
applicable Special Servicer any information in its possession with respect to
the Mortgage Loans which such Special Servicer shall require in order for such
Special Servicer to comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the applicable 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 such Special Servicer have been made (or, if any required distribution has
not been made by such 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) With respect to Specially Serviced Mortgage Loans, the Special
Servicers shall use reasonable efforts to obtain and, to the extent obtained, to
deliver electronically to the Master Servicers (subject to Section 8.14 herein),
the Paying Agent, the Rating Agencies and the Operating Adviser, on or before
April 15 of each year, commencing with April 15, 2007, (i) copies of the prior
year operating statements and, except with respect to the Co-op Mortgage Loans,
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 with respect to
Mortgage Loans other than Co-op Mortgage Loans, 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.
(f) The Special Servicers shall deliver to the applicable Master
Servicers, the Depositor, the Paying Agent and the Trustee all such other
information with respect to the Specially Serviced Mortgage Loans at such times
and to such extent as the applicable Master Servicers, the Trustee, the Paying
Agent or the Depositor may from time to time reasonably request; provided,
however, that the applicable 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 applicable Special
Servicer.
(g) The applicable Special Servicer shall deliver electronically a
written Inspection Report of each Specially Serviced Mortgage Loan in accordance
with Section 9.4(b) to the Operating Adviser.
(h) Notwithstanding anything to the contrary herein, as a condition
to each Special Servicer making any report or information available upon request
to any Person other than the parties hereto or any Operating Adviser, such
Special Servicer may require that the recipient of such information acknowledge
that such Special Servicer may contemporaneously provide such information to the
Depositor, the Trustee, the Paying Agent, the Master Servicers, the Primary
Servicer, the Sellers, the Placement Agent, any Underwriter, any Rating Agency,
and/or the Certificateholders, Certificate Owners or the holders of each
Serviced Companion Loan, as applicable. Any transmittal of information by a
Special Servicer to any Person other than the Trustee, the Paying Agent, the
Master Servicers, any Primary Servicer, the Rating Agencies, the Operating
Adviser or the Depositor may be accompanied by a letter from the applicable
Special Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any Person who possesses material, non-public information
regarding the Trust which issued Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11 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."
Section 9.33 Special Servicers to Cooperate with the Master
Servicers and Paying Agent
The Special Servicers shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the applicable
Master Servicer, the Trustee, the Paying Agent or any Primary Servicer to enable
it to perform its duties under this Agreement or any Primary Servicing
Agreement, as applicable; provided that no such request shall (i) require or
cause a Special Servicer to violate the Code, any provision of this Agreement,
including such 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 such Special Servicer, the Trust, the Paying
Agent or the Trustee to liability or materially expand the scope of such Special
Servicer's responsibilities under this Agreement. In addition, the Special
Servicers shall notify the applicable Master Servicers of all expenditures
incurred by it with respect to the Specially Serviced Mortgage Loans which are
required to be made by the applicable Master Servicers as Servicing Advances as
provided herein, subject to the provisions of Section 4.4 hereof. The Special
Servicers shall also remit all invoices relating to Servicing Advances promptly
upon receipt of such invoices.
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 and the applicable Special Servicer (each 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
from the Trust at a price equal to the Option Purchase Price upon receipt of
notice from the applicable Special Servicer that such Mortgage Loan has become
at least 60 days delinquent as to any monthly debt service payment (or is 90
days delinquent as to its Balloon Payment). The Option is exercisable, subject
to the related Seller's right (after receiving notice from the Trustee that an
Option Holder intends to exercise its Option) set forth in Section 2.3 to first
repurchase such Mortgage Loan, 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 the REMIC
Pools). Any Option Holder that exercises the Option shall be required to
purchase the applicable Mortgage Loan within 4 Business Days following 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 other 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 the current Option
Holder (and the other parties eligible to hold the Option) of such party's
desire to exercise the Option. 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.
(b) The "Option Purchase Price" shall be an amount equal to the fair
value of the related Mortgage Loan, as determined by the applicable Special
Servicer upon the request of any holder of the Option. The reasonable,
out-of-pocket expenses of each Special Servicer incurred in connection with any
such determination of the fair value of a Mortgage Loan shall be payable and
reimbursed to such Special Servicer as an expense of the Trust. Prior to the
applicable 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 applicable Special Servicer, the applicable Master Servicer
and the Trustee incurred in connection with the sale of the Mortgage Loan. The
applicable 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 applicable Special Servicer's receipt of the
Servicer Mortgage File relating to such Mortgage Loan, and such 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 the Option
Purchase Price. The applicable Special Servicer is required to recalculate the
fair value of the Mortgage Loan if there has been a material change in
circumstances or the applicable Special Servicer has received new information,
including the receipt of a third party bid to purchase the Option, which has a
material effect on the fair value, provided that such 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 applicable 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 applicable 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 applicable 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 applicable 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 applicable Special Servicer were to pursue a workout or
foreclosure strategy instead of the Option being exercised; and the Trust's
obligation to dispose of any REO Property as soon as practicable consistent with
the objective of maximizing proceeds for all Certificateholders, but in no event
later than the three-year period (or such extended period) specified in Section
9.15.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party (including, without limitation, in connection with the Michigan
Plaza Pari Passu Loan, the holder of the related Serviced Companion Loan, and
excluding any assignee whose purchase of the Michigan Plaza Pari Passu Loan
would violate the terms of the related Co-Lender Agreement) by the Option Holder
at its discretion at any time after its receipt of notice from the applicable
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 applicable Special Servicer, and
none of such parties shall be obligated to recognize any entity as an Option
Holder absent such notice.
(d) If the applicable 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 applicable 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 Appraiser or other expert in real estate matters 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 applicable Special Servicer shall redetermine the fair value taking into
account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a work-out arrangement, (iii) been
foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.
(f) Unless and until an Option Holder exercises an Option, the
applicable Special Servicer shall continue to service and administer the related
Mortgage Loan (and the related Serviced Companion Loan, as applicable) 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 with respect to Specially
Serviced Mortgage Loans (the "Operating Adviser"). The Operating Adviser shall
be elected for the purpose of receiving reports and information from the Special
Servicers in respect of the Specially Serviced Mortgage Loans.
(b) The initial Operating Adviser is LNR Securities Holdings, LLC, a
Delaware limited liability company. The Controlling Class shall give written
notice to the Trustee, the Paying Agent and the applicable Master Servicer of
the appointment of any subsequent Operating Adviser (in order to receive notices
hereunder). If a subsequent Operating Adviser is not so appointed, an election
of an Operating Adviser also shall be held. Notice of the meeting of the Holders
of the Controlling Class shall be mailed or delivered to each Holder by the
Paying Agent, not less than 10 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 not
be required to recognize any Person as an Operating Adviser until the Operating
Adviser provides the Paying Agent with written confirmation of its acceptance of
such appointment, written confirmation that it will keep confidential all
information received by it as Operating Adviser hereunder or otherwise with
respect to the Certificates, the Trust and/or this Agreement, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
The Paying Agent hereby recognizes LNR Securities Holdings, LLC as the initial
Operating Adviser. The Paying Agent shall promptly notify the Trustee of the
identity of the Operating Adviser. The Trustee shall promptly deliver such
information to the Master Servicers and the Special Servicers. The Master
Servicers and the Special Servicers shall not be required to recognize any
Person as an Operating Adviser until such information has been delivered by the
Trustee. In the event that an Operating Adviser shall have resigned or been
removed and a successor Operating Adviser shall not have been elected, there
shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent, of more than 50% of
the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Paying Agent shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Paying
Agent shall be conclusive. Notwithstanding any other provisions of this Section
9.37, the Paying Agent may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that a Special Servicer
has been elected as Operating Adviser or no Operating Adviser has been elected,
(i) such 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 a 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
applicable Special Servicer.
(g) The Operating Adviser appointed by the Certificateholders
pursuant to Section 9.37(c) hereof shall be entitled to receive copies of all
notices or information sent to the "Directing Lender" (as defined in the Royal
Office Airport Co-Lender Agreement) appointed by the holder of the Royal Airport
Office B Note.
(h) The applicable Master Servicer or each Special Servicer, as the
case may be, shall not be required to recognize any Person as the holder of the
Royal Airport Office B Note until such holder provides such Master Servicer or
Special Servicer, as the case may be, with an address and telecopy number for
the delivery of notices and other correspondence and a list of officers or
employees of such Person with whom the parties to this Agreement may deal
(including their names, titles, work addresses and telecopy numbers). The
applicable Master Servicer or Special Servicer, as the case may be, shall
promptly notify the Operating Adviser of such information with respect to any
such holder of the Royal Airport Office B Note.
Section 9.38 Limitation on Liability of Operating Adviser
The Operating Adviser shall have no liability to the Trust, the
Depositor, the Master Servicers, the Special Servicers, the Trustee, the Paying
Agent, the holders of each Serviced Companion Loan or the Certificateholders for
any action taken, or for refraining from the taking of any action, in good faith
and using reasonable business judgment pursuant to this Agreement. 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 the holders of each Serviced Companion Loan, 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 Rights of Operating Adviser
(a) Notwithstanding anything to the contrary herein, including but
not limited to Article 8 hereof, the Operating Adviser will receive notice of
and may advise each Special Servicer with respect to the following actions of
such Special Servicer with respect to any Mortgage Loan:
(i) any proposed modification of a Money Term of a Mortgage Loan
other than an extension of the original maturity date for 2 years or less;
(ii) with respect to notice only, any proposed sale of a Defaulted
Mortgage Loan, pursuant to Section 9.36;
(iii) any determination to bring an REO Property into compliance
with Environmental Laws;
(iv) any acceptance of substitute or additional collateral for a
Mortgage Loan not expressly required under such Mortgage Loan (except with
respect to a Defeasance Loan);
(v) any waiver of a "due on-sale" or "due on-encumbrance" clause
(other than with respect to a Co-op Mortgage Loan as to which the NCB, FSB
Subordinate debt Conditions have been satisfied);
(vi) any acceptance of an assumption agreement; and
(vii) any release of collateral for a Specially Serviced Mortgage
Loan (other than in accordance with the terms of or upon satisfaction of
such Mortgage Loan).
(b) In addition, notwithstanding anything to the contrary herein,
including but not limited to Article 8 hereof, the Operating Adviser shall have
the right to approve any of the following actions by the Special Servicer:
(i) any actual or proposed 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 acceptance of a discounted payoff; and
(iii) any release of "earn out" or performance reserves listed on
Schedule XI hereof, on deposit in an Escrow Account, other than where such
release does not require the consent of the lender.
In the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
and/or the holders of each Serviced Companion Loan, as the case may be, the
applicable Special Servicer may take any such action without waiting for the
Operating Adviser's advice or approval. No advice or approval or lack of
approval of the Operating Adviser may (and each Special Servicer shall ignore
and act without regard to any such advice or approval or lack of approval 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 Serviced Companion Loan or any other Section of
this Agreement, including such Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in Adverse REMIC Event with
respect to any REMIC Pool, (C) endanger the status of the Class EI Grantor Trust
as a grantor trust, (D) expose the Trust, the Depositor, a Master Servicer, a
Special Servicer, the Trustee or any of their respective Affiliates, members,
managers, partners, representatives, officers, directors, employees or agents,
to any material claim, suit or liability, or (E) expand the scope of a Master
Servicer's or Special Servicer's responsibilities under this Agreement.
Any notices required to be delivered to the Special Servicer with
respect to items (i) through (vii) of subsection (a) above and items (i) through
(iii) of subsection (b) above by any other party to this Agreement shall be
simultaneously delivered to the Operating Adviser. With respect to items (v),
(vi) and (vii) of subsection (a) above, the Operating Adviser shall be subject
to the same time periods for advising a Special Servicer with respect to any
such matters as are afforded to a Special Servicer pursuant to Section 14.1,
which periods shall be co-terminus with those of such Special Servicer. The
applicable Special Servicer shall provide the Operating Adviser with its
recommendations with respect to the matters set forth in both (a) and (b) above
within 5 Business Days of such Special Servicer's receipt of notice thereof. In
addition, the Operating Adviser may direct the Trustee to remove the applicable
Special Servicer at any time upon the appointment and acceptance of such
appointment by a successor to the applicable 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 an applicable 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 any other provision in
this Agreement, the Operating Adviser shall have the right to appoint a
sub-operating adviser with respect to any particular Mortgage Loan (or, with
respect to the Michigan Plaza Pari Passu Loan or Royal Airport Office Mortgage
Loan, the related Serviced Loan Group) Such sub-operating adviser shall have the
right, subject to Rating Agency Confirmation, to appoint, or serve as, the
Special Servicer with respect to such Mortgage Loan. All references in this
Agreement to the "Operating Adviser" and the "Special Servicer" shall refer to
the sub-operating adviser or the special servicer appointed by the sub-operating
adviser, as applicable; provided, however, that such Special Servicer shall not
have any advancing obligations with respect to such Mortgage Loans (or a
Serviced Loan Group, as applicable).
Notwithstanding anything to the contrary in this Section 9.39, with
respect to the Royal Airport Office Loan Group, the "Directing Lender" under the
Royal Airport Office Co-Lender Agreement shall have the rights set forth in this
section otherwise afforded to the Operating Adviser for so long as the Royal
Airport Office B Note Holder is the "Directing Lender." The Operating Adviser
shall have the right to consult with the General Special Servicer, on a
non-binding basis, regarding the matters set forth in subsections (a) and (b) of
this Section 9.39 in accordance with the terms and conditions set forth in the
Royal Airport Office Co-Lender Agreement.
Section 9.40 Litigation Control
The General Special Servicer shall, (1) direct, manage, prosecute
and/or defend any action brought by a Mortgagor (other than a Mortgagor with
respect to a Co-op Mortgage Loan) against the Trust and/or the General Special
Servicer and (2) represent the interests of the Trust in any litigation relating
to the rights and obligations of such Mortgagor or the Trust, or the enforcement
of the obligations of such Mortgagor, under the related Mortgage Loan documents
("General Trust-Related Litigation"). The Co-op Special Servicer shall, (1)
direct, manage, prosecute and/or defend any action brought by a Mortgagor with
respect to the Co-op Mortgage Loans against the Trust and/or the Co-op Special
Servicer and (2) represent the interests of the Trust in any litigation relating
to the rights and obligations of such Mortgagor or the Trust, or the enforcement
of the obligations of such Mortgagor under the related Mortgage Loan documents
("Co-op Trust-Related Litigation" and, collectively with General Trust-Related
Litigation, "Trust-Related Litigation").
To the extent either Master Servicer is named in Trust-Related
Litigation, and neither the Trust nor the applicable Special Servicer is named,
in order to effectuate the role of the applicable Special Servicer as
contemplated by the immediately preceding paragraph, the applicable Master
Servicer shall (1) notify the General Special Servicer (with respect to General
Trust-Related Litigation) or the Co-op Special Servicer (with respect to Co-op
Trust-Related Litigation) of such Trust-Related Litigation within ten (10) days
of such Master Servicer receiving service of such Trust-Related Litigation; (2)
provide monthly status reports to the applicable Special Servicer regarding such
Trust-Related Litigation; (3) seek to have the Trust replace the applicable
Master Servicer as the appropriate party to the lawsuit; and (4) so long as the
applicable Master Servicer remains a party to the lawsuit, consult with and act
at the direction of the applicable Special Servicer with respect to decisions
and resolutions related to the interests of the Trust in such Trust-Related
Litigation, including but not limited to the selection of counsel, provided,
however, if there are claims against the applicable Master Servicer and such
Master Servicer has not determined that separate counsel is required for such
claims, such counsel shall be reasonably acceptable to the applicable Master
Servicer.
Notwithstanding the rights of the Special Servicers otherwise set
forth above and below, (i) the Special Servicer shall provide the applicable
Master Servicer with copies of any notices, process and/or pleadings submitted
and/or filed in any such action, suit, litigation or proceeding; (ii) the
applicable Master Servicer may retain its own counsel, whose reasonable costs
shall be paid by the Trust under Section 8.24, and appear in any action, suit,
litigation or proceeding on its own behalf in order to represent, protect and
defend its interests; and (iii) the applicable Master Servicer shall have the
right to approve or disapprove of any judgment, settlement, final order or
decree that may impose liability on the applicable Master Servicer or otherwise
materially and adversely affect the applicable Master Servicer, including, but
not limited to, damage to the applicable Master Servicer's reputation as a
master servicer.
Further, nothing in this section shall require a Master Servicer to
take or fail to take any action which, in such Master Servicer's good faith and
reasonable judgment, may (1) result in an Adverse REMIC Event or Adverse Grantor
Trust Event or (2) subject such Master Servicer to liability or materially
expand the scope of such Master Servicer's obligations under this Agreement.
Subject to the rights of the Master Servicer set forth above and
below, the General Special Servicer and the Co-op Special Servicer shall have
the right at any time to (1) direct the General Master Servicer and the NCB
Master Servicer, respectively, to settle any Trust Related Litigation brought
against the Trust, including Trust Related Litigation asserted against the
General Master Servicer or the NCB Master Servicer, respectively (whether or not
the Trust or the applicable Special Servicer is named in any such Trust-Related
Litigation) and (2) otherwise reasonably direct the actions of the General
Master Servicer and the NCB Master Servicer, respectively, relating to Trust
Related Litigation against such Master Servicer (whether or not the Trust or the
applicable Special Servicer is named in any such claims or Trust-Related
Litigation), provided in either case that (A) such settlement or other direction
does not require any admission of liability or wrongdoing on the part of such
Master Servicer or otherwise materially and adversely affect the applicable
Master Servicer, including, but not limited to, damage to the applicable Master
Servicer's reputation as a master servicer, (B) the cost of such settlement or
any resulting judgment is and shall be paid by the Trust, (C) such Master
Servicer is and shall be indemnified pursuant to Section 8.24 hereof for all
costs and expenses of such Master Servicer incurred in defending and settling
the Trust-Related Litigation and for any judgment, (D) any such action taken by
such Master Servicer at the direction of the applicable Special Servicer be
deemed (as to such Master Servicer) to be in compliance with the Servicing
Standard and (E) such Special Servicer provides the applicable Master Servicer
with assurance reasonably satisfactory to such Master Servicer as to the items
in clauses (A), (B) and (C).
In the event more than one of the Master Servicers and the Special
Servicers or Trust are named in litigation, the applicable Master Servicers and
the applicable Special Servicers shall cooperate with each other to afford the
applicable Master Servicers and the applicable Special Servicer the rights
afforded to such party in this Section 9.40.
This Section 9.40 shall not apply in the event the General Special
Servicer authorizes the General Master Servicer, or the Co-op Special Servicer
authorizes the NCB Master Servicer, and the applicable Master Servicer agrees
(both authority and agreement to be in writing), to make certain decisions or
control certain Trust-Related Litigation on behalf of the Trust.
Notwithstanding the foregoing, (a) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to all applicable Master
Servicers or Special Servicers, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests
(provided that the applicable Master Servicer or applicable Special Servicer
shall retain the right to manage and direct any such action, suit, litigation or
proceeding); (b) in the event of any action, suit, litigation or proceeding,
other than an action, suit, litigation or proceeding relating to the enforcement
of the obligations of a Mortgagor, guarantor or other obligor under the related
Mortgage Loan documents, or otherwise relating to one or more Mortgage Loans or
Mortgaged Properties, neither the General Master Servicer (with respect to the
Mortgage Loans other than the NCB, FSB Loans and the NCCB Loan) nor the General
Special Servicer (with respect to the Mortgage Loans other than the Co-op
Mortgage Loans) and neither the NCB Master Servicer (with respect to the NCB,
FSB Loans and the NCCB Loan) nor the Co-op Special Servicer (with respect to the
Co-op Mortgage Loans) shall, without the prior written consent of the Trustee,
(i) initiate an action, suit, litigation or proceeding in the name of the
Trustee, whether in such capacity or individually, (ii) engage counsel to
represent the Trustee, or (iii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, LaSalle to be
registered to do business in any state; and (c) in the event that any court
finds that the Trustee is a necessary party in respect of any action, suit,
litigation or proceeding relating to or arising from this Agreement or any
Mortgage Loan, the Trustee shall have the right to retain counsel and appear in
any such proceeding on its own behalf in order to protect and represent its
interests, whether as Trustee or individually (provided that the applicable
Master Servicer or the applicable Special Servicer shall retain the right to
manage and direct any such action, suit, litigation or proceeding).
Section 9.41 Rights of the Holder of the Royal Airport Office B Note
(a) Subject to the second succeeding paragraph, the Royal Airport
Office Directing Holder will be entitled to advise the applicable Master
Servicer or applicable Special Servicer, as applicable with respect to the Royal
Airport Office Mortgage Loan and/or the related Mortgaged Property: (1) upon the
occurrence of an event of default under the related loan documents, with respect
to the actions proposed to be taken by the applicable Master Servicer or
applicable Special Servicer, as applicable, (and the applicable Master Servicer
or applicable Special Servicer, as applicable shall be required to consider the
alternative actions recommended by the Royal Airport Office Directing Holder and
to consult with the Royal Airport Office Directing Holder concerning
determinations made by the applicable Master Servicer or applicable Special
Servicer, as applicable, in accordance with the terms of this Agreement) and (2)
whether or not an event of default under the related loan documents has
occurred, with respect to proposals to take any significant action with respect
to the Royal Airport Office Loan Group and/or related Mortgaged Property,
whereby this Agreement requires the applicable Special Servicer to consent to,
or consult with the applicable Master Servicer about, or otherwise share in the
servicing responsibility for processing any such proposal (and the applicable
Master Servicer or applicable Special Servicer, as applicable, shall be required
to consider the alternative actions recommended by the Royal Airport Office
Directing Holder and to consult with the Royal Airport Office Directing Holder
concerning determinations made by the applicable Master Servicer or applicable
Special Servicer, as applicable, in accordance with the terms of this
Agreement). In addition, but subject to the second succeeding paragraph, neither
the applicable Master Servicer nor the applicable Special Servicer shall take,
nor shall the applicable Special Servicer permit the applicable Master Servicer
(but only if this Agreement requires the applicable Special Servicer to consent
to, or consult with the applicable Master Servicer about, or otherwise share in
the servicing responsibility of processing a decision regarding any such action)
to take, at any time, whether or not an event of default has occurred under the
related loan documents, the actions set forth in Section 9.39(a) and (b) unless
and until the applicable Master Servicer or applicable Special Servicer, as
applicable, has notified the holder of the Royal Airport Office B Note in
writing and the Royal Airport Office Directing Holder has not objected in
writing within five (5) Business Days if the Royal Airport Office Loan Group is
not a Specially Serviced Mortgage Loan and if the Royal Airport Office Loan
Group is a Specially Serviced Mortgage Loan, within ten (10) Business Days of
the Royal Airport Office Directing Holder having been notified thereof and
having been provided with all reasonably requested information with respect
thereto (it being understood and agreed that if such written objection has not
been received by the applicable Master Servicer or applicable Special Servicer,
as applicable, within such five (5) Business Day or ten (10) Business Day
period, as applicable, then the Royal Airport Office Directing Holder's approval
will be deemed to have been given);provided that, in the event that the
applicable Master Servicer or applicable Special Servicer, as applicable,
determines that immediate action is necessary to protect the interests of the
holders of the Royal Airport Office Loan Group (as a collective whole), the
applicable Master Servicer or applicable Special Servicer, as applicable, may
take (or, in the case of the applicable Special Servicer, may consent to the
applicable Master Servicer's taking) any such action without waiting for the
Royal Airport Office Directing Holder's response.
In addition, subject to the immediately succeeding paragraph, upon
notice to the applicable Master Servicer, the applicable Special Servicer and
the Trustee, the Royal Airport Office Directing Holder may direct the applicable
Master Servicer or applicable Special Servicer, as applicable, to take, or to
refrain from taking, such actions with respect to the Royal Airport Office
Mortgage Loan and/or the related Mortgaged Property as the Royal Airport Office
Directing Holder may deem consistent with the related Co-Lender Agreement or as
to which provision is otherwise made therein. The applicable Master Servicer or
applicable Special Servicer, as applicable, shall provide the Royal Airport
Office Directing Holder, upon reasonable request, with any information in the
applicable Master Servicer's or applicable Special Servicer's, as applicable,
possession with respect to such matters, including, without limitation, its
reasons for determining to take a proposed action.
Notwithstanding the foregoing, neither the applicable Master
Servicer nor the applicable Special Servicer, as applicable, by virtue of
Section 9.40, shall be required to take any action or refrain from taking any
action that would (and the applicable Master Servicer and the applicable Special
Servicer may ignore and act without regard to any advice, direction or objection
of the holder of the Royal Airport Office B Note that the applicable Master
Servicer or the applicable Special Servicer has determined, in its reasonable,
good faith judgment would) require or cause the applicable Master Servicer or
applicable Special Servicer to violate any provision of this Agreement, the
related Co-Lender Agreement or the related loan documents, including the
obligation to act in accordance with the Servicing Standard and the REMIC
Provisions.
The applicable Special Servicer may also act without the consent of
the holder of the Royal Airport Office B Note if the applicable Special Servicer
has notified the holder of such B Note and the Operating Adviser of the various
actions it proposes to take with respect to a workout or liquidation of the
Royal Airport Office Mortgage Loan and the Royal Airport Office B Note and for
30 days following the first such notice the holder of the Royal Airport Office B
Note has failed to approve any of the proposed actions and has failed to suggest
any alternative actions that the applicable Special Servicer reasonably
considers to be consistent with such Servicing Standard.
The applicable Master Servicer and the Operating Adviser acknowledge
that, pursuant to the related Co-Lender Agreement, the "Directing Lender," as
defined therein, shall be entitled to exercise the rights and powers granted to
the Operating Adviser herein with respect to the Royal Airport Office Mortgage
Loan and the Royal Airport Office B Note, 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 Serviced Loan Group) to refer to the holder of the Royal Airport Office B
Note; provided, however, that if the holder of the Royal Airport Office B Note
is no longer the Royal Airport Office Directing Holder, then the Directing
Lender will be the holder of the Royal Airport Office Mortgage Loan.
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 Co-Lender Agreement.
(b) If the applicable Master Servicer becomes aware of any event of
default under the related loan documents that give rise to the right of the
holder of the Royal Airport Office B Note to cure such default with respect to
the Royal Airport Office Loan Group under the related Co-Lender Agreement, the
applicable Master Servicer shall promptly notify such holder in writing. For so
long as the conditions exist that allow the holder of the Royal Airport Office B
Note to cure such conditions, the holder of the Royal Airport Office B Note may,
at its option, indicate to the applicable Master Servicer or applicable Special
Servicer, as applicable, in writing its intent to cure such defaults under the
Royal Airport Office Loan Group in accordance with the related Co-Lender
Agreement, whereupon the holder of the Royal Airport Office B Note or its
designee shall have the right to cure such defaults in accordance with such
related Co-Lender Agreement. Any such cure will be subject to all applicable
provisions of the related Co-Lender Agreement. The applicable Master Servicer,
applicable Special Servicer and Trustee shall reasonably cooperate with the
holder of the Royal Airport Office B Note in effecting such cure.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans
(a) The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent, to
make payments to the Class R-I Certificateholders, the Class R-II
Certificateholders and the REMIC 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), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b), (iii)
the termination of the Trust pursuant to Section 10.1(c) or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d); provided that
in no event shall the Trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof.
(b) The General Master Servicer shall give the Trustee and the
Paying Agent notice of the date when the aggregate Principal Balance of the
Mortgage Loans, after giving effect to distributions of principal made on the
next Distribution Date, is less than or equal to 1% of the initial Aggregate
Certificate Balance of the Certificates as of the Closing Date. In order to make
such determination, the NCB Master Servicer shall inform the General Master
Servicer (which may be through providing the General Master Servicer access to
the NCB Master Servicer's website) of the Principal Balance of the Co-op
Mortgage Loans on a monthly basis, or at an accelerated interval as requested by
the General Master Servicer of the NCB Master Servicer. The Paying Agent shall
promptly forward such notice to the Trustee, the Depositor, the Holder of a
majority of the Controlling Class, the Master Servicers, the Special Servicers,
NCB, FSB (if it is not then a Master Servicer) and the Holders of the Class R-I
Certificates; and the Holder of a majority of the Controlling Class, the General
Master Servicer, the NCB Master Servicer, the General Special Servicer, the
Co-op 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, provided, that if any
Holder of a majority of the Controlling Class, the Co-op Special Servicer, the
General Master Servicer, the NCB Master Servicer (if not then NCB, FSB), the
General Special Servicer or the Holders of the Class R-I Certificates makes such
an election, then NCB, FSB will have the option, by giving written notice to the
other parties hereto no later than 30 days prior to the anticipated date of
purchase, to purchase all of the NCB, FSB Loans and the NCCB Loan and each
related REO Property remaining in the Trust, and the other party will then have
the option to purchase only the remaining Mortgage Loans and each related REO
Property. 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 and
NCB, FSB (if it is not then a Master Servicer). 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 applicable 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 (other than any accrued and unpaid interest thereon
that has been the subject of an Advance) at the applicable Mortgage Rates (or
Mortgage Rates less the Master Servicing Fee Rate if a Master Servicer is the
purchaser), with respect to the Mortgage Loans to the Due Date for each Mortgage
Loan ending in the Collection Period with respect to which such purchase occurs,
plus unreimbursed Advances and interest on such unreimbursed Advances at the
Advance Rate, and the fair market value of any other property remaining in REMIC
I. The Trustee shall consult with the Placement Agent 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 the 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, a 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 Servicers or the Master Servicers, 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 Servicers or the Master Servicers,
as the case may be, stating that such termination will be a "qualified
liquidation" under Section 860F(a)(4) of the Code. Such purchase shall be made
in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own
100% of the REMIC III Certificates, and the Class EI Certificates, such Holders
may terminate REMIC I (which will in turn result in the termination of REMIC II
and REMIC III), and the Class EI Grantor Trust upon (i) the delivery to the
Trustee and the Depositor of an Opinion of Counsel (which opinion shall be at
the expense of such Holders) stating that such termination will be a "qualified
liquidation" of each REMIC Pool under Section 860F of the Code, and (ii) the
payment of any and all costs associated with such termination. Such termination
shall be made in accordance with Section 10.3.
(d) Following the date on which the aggregate Certificate Balance of
the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property remaining in the Trust as
contemplated by clause (iv) 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 and upon the delivery to the Trustee and the Depositor of an Opinion of
Counsel (which opinion shall be at the expense of such Sole Certificateholders)
stating that such exchange will be a "qualified liquidation" of each REMIC Pool
under Section 860F of the Code. In the event that the Sole Certificateholder
elects to exchange all of its Certificates (other than the Residual
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust in accordance with the preceding sentence, such Sole
Certificateholder, not later than the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in the Certificate
Account an amount in immediately available funds equal to all amounts due and
owing to the Depositor, the General Master Servicer, the NCB Master Servicer,
the General Special Servicer, the Co-op Special Servicer and the Trustee
hereunder through the date of the liquidation of the Trust that may be withdrawn
from the Certificate Account, or an escrow account acceptable to the respective
parties hereto or that may be withdrawn from the Distribution Accounts pursuant
to this Agreement but only to the extent that such amounts are not already on
deposit in the Certificate Account. Upon confirmation that such final deposits
have been made and following the surrender of all its Certificates (other than
the Residual Certificates) on such Distribution Date, the Trustee shall, upon
receipt of a Request for Release from the General Master Servicer and the NCB
Master Servicer, if applicable, release or cause to be released to the Sole
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 Sole Certificateholder as shall be necessary
to effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Trust, and the Trust shall be liquidated in accordance with Section 10.2. For
federal income tax purposes, the Sole Certificateholder shall be deemed to have
purchased the assets of REMIC I and the Class EI Grantor Trust, to the extent
then outstanding, for an amount equal to the remaining Certificate Balance of
its Certificates (other than the Residual Certificates), plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributed in respect of such Certificates. The remaining Mortgage
Loans and REO Properties are deemed distributed to the Sole Certificateholder in
liquidation of the Trust pursuant to Section 10.2.
(e) Upon the termination of the Trust, any Excess Interest held by
the Class EI Grantor Trust shall be distributed to the Class EI
Certificateholders, on a pro rata basis.
(f) Subject to Section 1.6 and Section 9.4(e), upon the sale of the
Mortgage Loan that is part of the Royal Airport Office Loan Group by the Trust
or the payment in full of such Mortgage Loan, the related Mortgage Loan and the
Royal Airport Office B Note shall no longer be subject to this Agreement and the
obligations and rights of the Master Servicer and the Special Servicer, with
respect to such Royal Airport Office Loan Group shall terminate in the manner
and subject to the applicable provisions, set forth in Section 8.28 and Section
9.30, respectively.
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, REMIC Regular and
Class EI 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, REMIC Regular and Class EI
Certificates will be made, and upon presentation and surrender of the Class R-I,
Class R-II, REMIC Regular and Class EI 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,
REMIC Regular and Class EI 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, REMIC Regular and Class EI Certificates.
Upon any such termination, the duties of the Certificate Registrar with respect
to the Class R-I, Class R-II, REMIC Regular and Class EI Certificates shall
terminate and the Trustee shall terminate, or request the Master Servicers and
the Paying Agent to terminate, the Certificate Accounts 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, REMIC Regular and Class EI
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, REMIC Regular and Class EI
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, REMIC Regular and
Class EI Certificateholders to surrender their certificates evidencing the Class
R-I, Class R-II, REMIC Regular and Class EI 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, REMIC Regular and Class EI
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, REMIC Regular and Class EI 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, REMIC Regular and Class EI Certificates shall not
have been surrendered for cancellation, the Paying Agent shall, subject to
applicable state law relating to escheatment, hold all amounts distributable to
such Holders for the benefit of such Holders. No interest shall accrue on any
amount held by the Trustee and not distributed to a Class R-I, Class R-II, REMIC
Regular or Class EI 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 the Class EI Grantor Trust 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 a Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Paying Agent subsequently receives an Opinion of Counsel (at the
expense of such 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 and Class EI Certificates the Trustee shall
prepare and (on behalf of REMIC I, REMIC II and REMIC III) shall adopt a
plan of complete liquidation of each REMIC Pool, meeting the requirements
of a qualified liquidation under the REMIC Provisions, which plan need not
be in any special form and the date of which, in general, shall be the
date of the notice specified in Section 10.2(a) and shall be specified in
a statement attached to the final 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 and Class EI 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
remaining assets of REMIC II after such final payment of the REMIC II
Regular Interests and (C) to the Holders of the Class R-III Certificates
all remaining assets of REMIC III (in each case other than cash retained
to meet claims), and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests, REMIC Regular Certificates or the
final distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan
of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee
to take such action as may be necessary to adopt a plan of complete liquidation
of each 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
The provisions of this Article XI shall apply to each of the REMIC
Regular Certificateholders and Residual Certificateholders to the extent
appropriate.
Section 11.1 Limitation on Rights of Holders
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicers
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) If a Certificateholder is also a Mortgagor with respect to any
Mortgage Loan, such Certificateholder shall have no right to vote with respect
to any matters concerning such Mortgage Loan. In addition, if a
Certificateholder is also one of the Special Servicers, such Certificateholder
shall have no right to vote, in its capacity as a Certificateholder, with
respect to compensation to such Special Servicer or any waiver of a default with
respect to a Mortgage Loan.
(d) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.2 Access to List of Holders
(a) If the Paying Agent is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within 15 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, a Special Servicer, a
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, the Special Servicers and the Trustee that neither the Depositor, the
Certificate Registrar, the Paying Agent, the Master Servicers, the Special
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 officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
nor the Paying Agent shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee, the
Paying Agent or the Depositor in reliance thereon, whether or not notation of
such action is made upon such Certificate.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool
and the Class EI Grantor Trust, as applicable.
Section 12.1 REMIC Administration
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans
(other than Excess Interest payable thereon), such amounts with respect thereto
as shall from time to time be held in the Certificate Accounts, the Interest
Reserve Accounts, the Distribution Account and the Reserve Account, the
Insurance Policies and any related amounts REO Account and any related REO
Properties as a REMIC ("REMIC I") under the Code, other than any portion of the
foregoing allocable to a Serviced Companion Loan. 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 I Interests are issued. For purposes of such
election, the REMIC I Regular Interests shall each be designated as a separate
class of "regular interests" in REMIC I and the Class R-I Certificates shall be
designated as the sole class of "residual interests" in REMIC I.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC
II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC II Interests are issued. For the purposes of such election, the REMIC II
Regular Interests shall be designated as the "regular interests" in REMIC II and
the Class R-II Certificates shall be designated as the sole class of the
"residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC
III") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates are issued. For purposes of such election, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class X and Class X-Y 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 Regular Certificates 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, or cause to be prepared
and filed, all of each REMIC Pool's federal and state income or franchise tax
and information returns as such REMIC Pool's direct representative, and the
Trustee shall sign such returns; the expenses of preparing and filing such
returns shall be borne by the Paying Agent, except that if additional state tax
returns are required to be filed in more than three states, the Paying Agent
shall be entitled, with respect to any such additional filings, to (i) be paid a
reasonable fee and (ii) receive its reasonable costs and expenses, both as
amounts reimbursable pursuant to Section 5.2(a)(vi) hereof. The Depositor, the
Master Servicers and the Special Servicers shall provide on a timely basis to
the Paying Agent or its designee such information with respect to the Trust or
any REMIC Pool as is in its possession, which the Depositor or a Master Servicer
and a Special Servicer has received or prepared by virtue of its role as
Depositor or Master Servicer and Special Servicer hereunder and reasonably
requested by the Paying Agent to enable it to perform its obligations under this
subsection, and the Paying Agent shall be entitled to conclusively rely on such
information in the performance of its obligations hereunder. The Depositor shall
indemnify the Trust, the Trustee and the Paying Agent or 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. Each Master Servicer and each
Special Servicer shall indemnify the Trustee, the Paying Agent, and the
Depositor for any liability or assessment against the Trustee, the Depositor,
the Paying Agent or any REMIC Pool and any expenses incurred in connection with
such liability or assessment (including attorneys' fees) resulting from any
error in any of such tax or information returns resulting from errors in the
information provided by such Master Servicer or such Special Servicer, as the
case may be, which errors were caused by the negligence, willful misconduct or
bad faith of such Master Servicer or such Special Servicer, as the case may be.
The Paying Agent shall indemnify the Master Servicers, the Special Servicers,
the Depositor or any REMIC Pool for any expense incurred by any Master Servicer,
any Special 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 a Master
Servicer, the Paying Agent or a Special Servicer, or the termination of this
Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Paying Agent shall provide (i) to the Internal Revenue
Service or other Persons (including, but not limited to, the Transferor of a
Residual Certificate, to a Disqualified Organization or to an agent that has
acquired a Residual Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished to
them, shall prepare and file with the appropriate state authorities as may to
the actual knowledge of a Responsible Officer of the Paying Agent be required by
applicable law and shall prepare and disseminate to Certificateholders Internal
Revenue Service Forms 1099 (or otherwise furnish information within the control
of the Paying Agent) to the extent required by applicable law. The Paying Agent
will make available to any Certificateholder any tax related information
required to be made available to Certificateholders pursuant to the Code and any
regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC Pool's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the Paying Agent and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the Paying
Agent as their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such documents and designation of a Tax Matters Person,
including the designation of such Residual Certificateholder. The Paying Agent
shall not be required to expend or risk its own funds or otherwise incur any
other financial liability in the performance of its duties hereunder or in the
exercise of any of its rights or powers (except to the extent of the ordinary
expenses of performing its duties under this Agreement), if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicers and the Special Servicers shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, Paying Agent, the Master Servicers and the Special Servicers,
within the scope of its express duties, and shall each act in accordance with
this Agreement and the REMIC Provisions in order to create and maintain the
status of each REMIC Pool as a REMIC and the Class EI Grantor Trust as a grantor
trust or, as appropriate, adopt a plan of complete liquidation with respect to
each REMIC Pool.
(j) The Trustee, the Paying Agent, the Master Servicers, the Special
Servicers, 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 Section
860F(a)(2)) of the Code or (iii) endanger the status of the Class EI 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 the REMIC I, REMIC II or
REMIC III, 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 the REMIC I, REMIC II or REMIC III after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicers 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, which breach constitutes
negligence, willful misconduct or bad faith; (ii) a Special Servicer, if such
tax arises out of or results from a breach by such Special Servicer of any of
its obligations under this Agreement, which breach constitutes negligence,
willful misconduct or bad faith; (iii) a 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, which breach constitutes negligence, willful misconduct or
bad faith; and (iv) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicers 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 the Master Servicers or the Special Servicers in the normal course of their
businesses, the Master Servicers and the Special Servicers 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, and with respect to the Class EI
Grantor Trust on the cash or accrual method and so as to enable reporting to
Holders of the Class EI Certificates, respectively, based on their annual
accounting period. 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 Servicers 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 days after the Closing Date all information or data that
the Paying Agent reasonably determines to be relevant for tax purposes on the
valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Certificates, as applicable, and the projected cash flows of the
Mortgage Loans. Thereafter, the Depositor shall provide to the Paying Agent or
its designee, promptly upon request therefor, any such additional information or
data within the Depositor's possession or knowledge that the Paying Agent may,
from time to time, reasonably request in order to enable the Paying Agent to
perform its duties as set forth herein. The Paying Agent is hereby directed to
use any and all such information or data provided by the Depositor in the
preparation of all federal and state income or franchise tax and information
returns and reports for each REMIC Pool to Certificateholders as required
herein. The Depositor hereby indemnifies the Trustee, the Paying Agent and each
REMIC Pool for any losses, liabilities, damages, claims, expenses (including
attorneys' fees) or assessments against the Trustee, the Paying Agent and each
REMIC Pool arising from any errors or miscalculations of the Paying Agent
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Paying
Agent (but not resulting from the methodology employed by the Paying Agent) on a
timely basis and such indemnification shall survive the termination of this
Agreement and the termination or resignation of the Paying Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its reasonable best efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, each 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 each
REMIC Pool 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 Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class of REMIC
I Regular Interests, each Class of REMIC II Regular Interests and each Class of
REMIC Regular Certificates is the Final Rated Distribution Date.
Section 12.2 Prohibited Transactions and Activities
Neither the Trustee, the Paying Agent, the Master Servicers nor the
Special Servicers shall permit the sale, disposition or substitution of any of
the Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or
default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool,
(iii) the termination of any REMIC Pool in a "qualified liquidation" as defined
in Section 860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II
hereof), nor acquire any assets for the Trust, except as provided in Article II
hereof, nor sell or dispose of any investments in the Certificate Accounts 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 regular interests therein, (B)
affect the distribution of interest or principal on the Certificates, (C) result
in the encumbrance of the assets transferred or assigned to any REMIC Pool
(except pursuant to the provisions of this Agreement) or (D) cause any REMIC
Pool to be subject to a tax on "prohibited transactions" or "prohibited
contributions" or other tax pursuant to the REMIC Provisions.
Section 12.3 Modifications of Mortgage Loans
Notwithstanding anything to the contrary in this Agreement, neither
the Trustee, the Paying Agent, the applicable Master Servicer nor the applicable
Special Servicer shall permit any modification of a Money Term of a Mortgage
Loan that is not in default or as to which default is not reasonably foreseeable
unless (i) the Trustee, the applicable 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 the applicable Master Servicer or the applicable 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 Treasury Regulations Section
1.860G-2(b) of the Code) or (ii) such modification meets the requirements set
forth in Section 14.2.
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status
In the event that any REMIC Pool fails to qualify as a REMIC, loses
its status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by either the Trustee or the
Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicers, the
Special Servicers, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicers, the Special Servicers, 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 Grantor Trust Administration
The assets of the Class EI Grantor Trust, consisting of the right to
any Excess Interest in respect of the ARD Loan and the related amounts in the
Excess Interest Sub-account, shall be held by the Trustee for the benefit of the
Holders of the Class EI Certificates, which Class EI Certificates will evidence
100% beneficial ownership of the related assets from and after the Closing Date.
It is intended that the portions of the Trust consisting of the Class EI Grantor
Trust will be treated as a grantor trust for federal income tax purposes, within
the meaning of subpart E, part I of subchapter J of the Code, 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 Class EI Grantor Trust so
as to take advantage of variations in the market so as to improve the rate of
return of Holders of the Class EI Certificates. The Trustee and the Paying Agent
shall be deemed to hold and shall account for the Class EI Grantor Trust
separate and apart from the assets of the REMIC I, REMIC II and REMIC III
created hereunder. In furtherance of such intention, the Paying Agent shall
furnish or cause to be furnished to the Class EI 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 relating to their shares of the income and expenses of the Class EI
Grantor Trust, at the time or times and in the manner required by the Code.
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness
Except with respect to Section 13.9, Section 13.10 and Section
13.11, the parties hereto acknowledge and agree that the purpose of Article XIII
of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Depositor nor the Trustee shall exercise their rights to request
delivery of information or other performance under these provisions other than
reasonably and in good faith, or (except with respect to Section 13.9, Section
13.10 or Section 13.11) for purposes other than compliance with the Securities
Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder. The parties hereto acknowledge that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff, or
otherwise, and agree to comply with requests made by the Depositor or the
Trustee in good faith for delivery of information under these provisions on the
basis of evolving interpretations of the requirements of Regulation AB. In
connection with the Subject Securitization Transaction, each of the Master
Servicers, the Special Servicers, any Primary Servicer and the Trustee shall
cooperate fully with the Depositor and the Trustee, as applicable, to deliver or
make available to the Depositor or the Trustee, as applicable (including any of
their assignees or designees), any and all information in its possession and
necessary in the good faith determination of the Depositor or the Trustee, as
applicable, to permit the Depositor to comply with the provisions of Regulation
AB, together with such disclosure relating to the Master Servicers, the Special
Servicers, any Primary Servicer and the Trustee, as applicable, and any
Reporting Sub-Servicer, or the Servicing of the Mortgage Loans, reasonably
believed by the Depositor or the Trustee, as applicable, in good faith, to be
necessary in order to effect such compliance. Each party to this Agreement shall
have a reasonable period of time to comply with any written request made under
this Section 13.1, but in any event, shall, upon reasonable advance written
request, provide such information in sufficient time to allow the Depositor or
the Trustee, as applicable, to satisfy any related filing requirements.
Section 13.2 Certain Information to be Provided by the Master
Servicers, the Special Servicers, any Primary Servicer and the Trustee
(a) For as long as the Trust is subject to the reporting
requirements of the Exchange Act, in connection with the succession to any
Reporting Servicer, any Additional Servicer or any Reporting Sub-Servicer as
servicer, trustee or paying agent under this Agreement by any Person (i) into
which such Reporting Servicer, any Additional Servicer or any Reporting
Sub-Servicer, as the case may be, may be merged or consolidated, or (ii) which
may be appointed as a successor (or in the case of the Trustee, successor
Trustee, co-Trustee or Separate Trustee) to any Reporting Servicer, any
Additional Servicer or any Reporting Sub-Servicer, as the case may be, such
Reporting Servicer, any Additional Servicer or any Reporting Sub-Servicer, as
the case may be, shall (and each Reporting Servicer, as applicable, shall (a)
use reasonable efforts to cause each Additional Servicer and each Reporting
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Additional Servicer and each Reporting
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to) provide to the Depositor, at least 5 calendar days prior to
the effective date of such succession or appointment, as long as such disclosure
prior to such effective date would not be violative of any applicable law or
confidentiality agreement, otherwise no later than the effective date of such
succession or appointment, (x) written notice to the Depositor and the Trustee
of such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor and the Trustee, all information
reasonably requested by the Depositor so that it may comply with its reporting
obligation under Item 6.02 of Form 8-K as it relates to the Servicing function
with respect to any class of Certificates.
(b) If either the Michigan Plaza Companion Loan or the Royal Airport
Office B Note is deposited into an Other Securitization, the Reporting Servicers
responsible for performing servicing functions with respect to the Michigan
Plaza Companion Loan or the Royal Airport Office Mortgage Loan, as the case may
be, will take all actions reasonably requested of them to enable such Other
Securitization to comply with Regulation AB. Without limiting the foregoing,
such Reporting Servicers will, if reasonably requested by the depositor for such
Other Securitization, provide disclosure (in substantially the same form as the
disclosure provided in the prospectus supplement for the Subject Securitization
Transaction, to the extent necessary to comply with Regulation AB) regarding the
applicable Reporting Servicer, reasonably and in good faith determined by the
depositor in such Other Securitization to be required by Regulation AB for
inclusion in disclosure documents with respect to such Other Securitization,
together with an opinion of counsel as to the compliance of such disclosure with
the requirements of Regulation AB and indemnification substantially similar to
that provided in the Subject Securitization Transaction regarding damages
incurred in connection with the non-compliance with the requirements of
Regulation AB relating to the disclosure referred to in the immediately
preceding sentence.
Section 13.3 Filing Obligations
The Reporting Servicers shall (and shall (a) use reasonable efforts
to cause each Additional Servicer and each Reporting Sub-Servicer (other than
any party to this Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause each Additional Servicer and each Reporting Sub-Servicer (other
than any party to this Agreement) with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans, to)
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act.
Section 13.4 Form 10-D Filings
Within 15 calendar days after each Distribution Date (the "10-D
Filing Deadline") (subject to permitted extensions under the Exchange Act), the
Trustee shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Trustee shall file each Form 10-D with a copy of the related Monthly
Certificateholder's Report attached thereto. Any necessary disclosure in
addition to the Monthly Certificateholder's Report that is required to be
included on Form 10-D ("Additional Form 10-D Disclosure") shall, pursuant to the
immediately succeeding paragraph, be reported by the parties set forth on
Schedule XVII and directed to the Depositor and the Trustee for approval by the
Depositor. The Trustee will have no duty or liability for any failure hereunder
to determine or prepare any Additional Form 10-D Disclosure (other than such
Additional Form 10-D Disclosure which is to be reported by it as set forth on
Schedule XVII) absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule XVII hereto, within 5 calendar days
after the related Distribution Date, each Person identified on Schedule XVII
shall be required to provide to the Depositor and the Trustee (or, as to each
such Person responsible for the performance of servicing functions with respect
to a Serviced Companion Loan that has been deposited into an Other
Securitization, the depositor and the trustee in such Other Securitization), in
a form readily convertible to an XXXXX-compatible form (to the extent available
to such party in such format), or in such other form as otherwise agreed by the
Depositor, the Trustee and such party, to the extent a Servicing Officer or
Responsible Officer, as the case may be, thereof has actual knowledge (other
than with respect to disclosure required pursuant to Item 1117 or Item 1119 of
Regulation AB as to such party which shall be reported if actually known by any
Servicing Officer or Responsible Officer, as the case may be, or any lawyer in
the in-house legal department of such party), together with an Additional
Disclosure Notification in the form attached hereto as Exhibit AA. The Trustee
shall provide prompt notice to the Depositor (or, with respect to a Serviced
Companion Loan if deposited into an Other Securitization, the depositor and the
trustee in such Other Securitization) to the extent the Trustee is notified of
an event reportable on Form 10-D for which it has not received the necessary
Additional Form 10-D Disclosure from such party. The Trustee shall have no duty
under this Agreement to monitor or enforce the performance by the parties listed
on Schedule XVII of their duties under this paragraph or proactively solicit or
procure from any such parties any Additional Form 10-D Disclosure information.
Unless otherwise directed by the Depositor, and subject to any comments received
to such disclosure from the Depositor by the 2nd calendar day after such 5th
calendar day after the related Distribution Date, the Trustee shall include the
form and substance of the Additional Form 10-D Disclosure on the related Form
10-D. The Depositor will be responsible for any reasonable fees charged and
out-of-pocket expenses incurred by the Trustee in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
On or prior to the 4th Business Day prior to the 15th calendar day
after the related Distribution Date the Trustee shall prepare and deliver
electronically the Form 10-D to the Depositor for review. No later than the end
of business on the 2nd Business Day prior to the 15th calendar day after the
related Distribution Date, the Depositor (or, if so directed by the Depositor,
the Trustee pursuant to a power of attorney provided to the Trustee by the
Depositor pursuant to Item 601(b)(24) of Regulation S-K) shall sign the Form
10-D and return an electronic or fax copy of such signed Form 10-D (with an
original executed hard copy to follow by overnight mail) to the Trustee. The
Trustee shall (a) file such Form 10-D, upon signature thereof as provided in
Section 13.14, not later than 5:30 p.m. (New York City time) on the 15th
calendar day after the related Distribution Date or (b) use commercially
reasonable best efforts to file such Form 10-D, if the Trustee received the
signed Form 10-D after the signing deadline set forth in Section 13.14, not
later than 5:30 p.m. (New York City time) on the 15th calendar day after the
related Distribution Date; provided that, if the Trustee cannot file the Form
10-D prior to the deadline set forth in the immediately preceding clause (b),
the Trustee shall file such Form 10-D as soon as possible thereafter. If a Form
10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Trustee will follow the procedures set forth in Section 13.8(b).
After filing with the Commission, the Trustee shall promptly make available on
its internet website a final executed copy of each Form 10-D. The parties to
this Agreement acknowledge (and each Additional Servicer and each Reporting
Sub-Servicer shall be required to acknowledge) that the performance by the
Trustee of its duties under this Section 13.4 related to the timely preparation
and filing of Form 10-D is contingent upon such parties (and, to the extent
applicable, any Additional Servicer or Reporting Sub-Servicer) observing all
applicable deadlines in the performance of their duties under this Section 13.4.
The Trustee shall have no liability for any loss, expense, damage, claim arising
out of or with respect to any failure to properly prepare, arrange for execution
or file such Form 10-D where such failure results from the Trustee's inability
or failure to receive on a timely basis any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 5th calendar day after the related Distribution Date
during any year in which the Trust is required to file a Form 10-D if the answer
to the questions should be "no." The Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-D.
Section 13.5 Form 10-K Filings
On or prior to 5:30 p.m. (New York City time) on the 90th day after
the end of each fiscal year of the Trust or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Trust ends on December 31st of each year), commencing in
March 2007, the Trustee shall prepare and file on behalf of the Trust a Form
10-K, in form and substance as required by the Exchange Act. Each such Form 10-K
shall include the following items, in each case to the extent they have been
delivered to the Trustee within the applicable time frames set forth in this
Agreement,
(i) an annual compliance statement for each Reporting Servicer
pursuant to Item 1123 of Regulation AB, as described under Section 13.9;
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for each Reporting Servicer pursuant to Item 1122 of
Regulation AB, as described under Section 13.10, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria
described under Section 13.10 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if any Reporting Servicer's report on assessment of compliance with
Servicing Criteria described under Section 13.10 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation as to why such report is not included,
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer pursuant to Item 1122 of Regulation AB, as
described under Section 13.11, and (B) if any registered public accounting
firm attestation report described under Section 13.11 identifies any
material instance of noncompliance, disclosure identifying such instance
of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation as to why
such report is not included, and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 13.6.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Schedule XVIII and directed to the Depositor and the Trustee for
approval by the Depositor. The Trustee will have no duty or liability for any
failure hereunder to determine or prepare any Additional Form 10-K Disclosure
(other than such Additional Form 10-K Disclosure which is to be reported by it
as set forth on Schedule XVIII) absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 1st (with a grace period through March
7th) of each year subsequent to the fiscal year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2007, each party identified
on Schedule XVIII hereto shall be required to provide to the Depositor (or, with
respect to a Serviced Companion Loan if deposited into an Other Securitization,
the depositor and the trustee in such Other Securitization) and the Trustee the
form and substance of the corresponding Additional Form 10-K Disclosure as set
forth on Schedule XVIII, if applicable, and in a form that is readily
convertible to an XXXXX-compatible form (to the extent available to such party
in such format), or in such other form as otherwise agreed by the Depositor, the
Trustee and such Person together with an Additional Disclosure Notification in
the form attached hereto as Exhibit AA. The Trustee shall, at any time prior to
filing the related Form 10-K, provide prompt notice to the Depositor to the
extent the Trustee is notified of an event reportable on Form 10-K for which it
has not received the necessary Additional Form 10-K Disclosure from such party.
The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Schedule XVIII of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. Unless otherwise directed by the Depositor,
and subject to any comments received to such disclosure from the Depositor by
March 15th, the Trustee shall include the form and substance of the Additional
Form 10-K Disclosure on the related Form 10-K. The Depositor will be responsible
for any reasonable fees charged and out-of-pocket expenses incurred by the
Trustee in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph. Any notice delivered to the Trustee pursuant to
this paragraph shall be delivered by facsimile to (000) 000-0000 and by email to
[email protected] or such other address as may hereafter be furnished by the
Trustee to the other parties in writing.
On or prior to 5:00 p.m. (New York City time) on the 8th Business
Day prior to the 10-K Filing Deadline, the Trustee shall prepare and deliver
electronically a draft copy of the Form 10-K to the Depositor for review. No
later than 5:00 p.m. (New York City time) on the 3rd Business Day prior to the
10-K Filing Deadline, a senior officer in charge of securitization of the
Depositor shall sign the Form 10-K on behalf of the Depositor and return an
electronic or fax copy of such signed Form 10-K to the Trustee. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee will follow the procedures set forth in Section 13.8(b). After
filing with the Commission, the Trustee shall, pursuant to Section 5.4, make
available on its internet website a final executed copy of each Form 10-K. The
signing party at the Depositor can be contacted at Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a
copy to Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq. The parties to this Agreement
acknowledge (and each Additional Servicer and each Reporting Sub-Servicer shall
be required to acknowledge) that the performance by the Trustee of its duties
under this Section 13.5 related to the timely preparation and filing of Form
10-K is contingent upon such parties (and, to the extent applicable, any
Additional Servicer or Reporting Sub-Servicer) observing all applicable
deadlines in the performance of their duties under this Article XIII. The
Trustee shall have no liability with respect to any failure to properly prepare,
arrange for execution or file such Form 10-K resulting from the Trustee's
inability or failure to receive on a timely basis any information from any other
party hereto needed to prepare, arrange for execution or file such Form 10-K on
a timely basis, not resulting from its own negligence, bad faith or willful
misconduct.
If a Form 10-K is permitted to be filed notwithstanding any missing
information for inclusion therein, the Trustee shall nonetheless file such Form
10-K and, if Regulation AB (or Form 10-K itself) permits the inclusion of an
explanation why such information is missing, the Trustee shall include such
explanation of the circumstances (such explanation to be based solely on such
notice regarding the same as may have been delivered to the Trustee by the
person responsible for the missing information).
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 15th calendar day of March in any year in which the
Trust is required to file a Form 10-K if the answer to the questions should be
"no." The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any Form 10-K.
Section 13.6 Xxxxxxxx-Xxxxx Certification
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit BB-1 attached hereto, required
to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to
cause each Additional Servicer and each Reporting Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicer and each Reporting Sub-Servicer (other than any party
to this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to, provide to the Person
who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March
1st (with a grace period through noon (New York City time) on March 7th) of each
year subsequent to the fiscal year in which the Trust is subject to the
reporting requirements of the Exchange Act and otherwise within a reasonable
period of time upon request, a certification (each, a "Performance
Certification"), in the form attached hereto as Xxxxxxxx XX-0, XX-0, XX-0 and
BB-5, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, each a "Certification Party" and
collectively, "Certification Parties") can reasonably rely. The senior officer
in charge of securitization of the Depositor shall serve as the Certifying
Person on behalf of the Trust. Such officer of the Certifying Person can be
contacted at Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx and Xxxxxxxx
Xxxxx, Esq. If any Reporting Servicer is terminated or resigns pursuant to the
terms of this Agreement, or any applicable sub-servicing agreement or primary
servicing agreement, as the case may be, such Reporting Servicer shall provide a
Performance Certification and a reliance certificate to the Certifying Person
pursuant to this Section 13.6 with respect to the period of time it was subject
to this Agreement or the applicable sub-servicing or primary servicing
agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 13.9, if applicable, (ii)
annual report on assessment of compliance with Servicing Criteria provided
pursuant to Section 13.10 and (iii) registered public accounting firm
attestation report provided pursuant to Section 13.11 and shall include a
certification that each such annual report on assessment of compliance discloses
any material instances of noncompliance described to the registered public
accountants of such Reporting Servicer to enable such accountants to render the
attestation provided for in Section 13.11.
If a Serviced Companion Loan is deposited into an Other
Securitization, each Reporting Servicer providing servicing functions with
respect to such Serviced Companion Loan shall provide to the Person who signs
the Xxxxxxxx-Xxxxx Certification with respect to such Other Securitization a
Performance Certification (which shall address the matters contained in the
Performance Certification, but solely with respect to such Serviced Companion
Loan), upon which such certifying person, the entity for which the certifying
person acts as an officer, and such entity's officers, directors and Affiliates
can reasonably rely.
Notwithstanding the foregoing, without limiting the requirements of
the Exchange Act, nothing in this Section shall require any Reporting Servicer
(i) to certify or verify the accurateness or completeness of any information
provided to such Reporting Servicer by third parties (other than a Sub-Servicer
or Additional Servicer retained by it, except for Seller Sub-Servicers with
respect to the Master Servicers or Special Servicers, as applicable), (ii) to
certify information other than to such Reporting Servicer's knowledge and in
accordance with such Reporting Servicer's responsibilities hereunder 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 Reporting Servicer have been completed except as they have been left
blank on their face.
Section 13.7 Form 8-K Filings
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "8-K Filing Deadline") under Form 8-K (each a
"Reportable Event"), the Trustee shall prepare and file on behalf of the Trust
any Form 8-K, as required by the Exchange Act, provided that the Depositor shall
file the initial Form 8-K in connection with the issuance of the Certificates.
Any disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K ("Form 8-K Disclosure Information") shall,
pursuant to the paragraph immediately below, be reported by any party set forth
on Schedule XIX to which such Reportable Event relates and such Form 8-K
Disclosure Information shall be directed to the Depositor and the Trustee for
approval by the Depositor. The Trustee will have no duty or liability for any
failure hereunder to determine or prepare any Form 8-K Disclosure Information
(other than such Form 8-K Disclosure Information which is to be reported by it
as set forth on Schedule XIX) absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than noon on the 2nd Business Day after the
occurrence of the Reportable Event, the parties listed on Schedule XIX hereto
shall, to the extent a Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge, be required to provide written notice to the
Depositor (or, as to each such Person responsible for the performance of
servicing functions with respect to a Serviced Companion Loan that has been
deposited into an Other Securitization, the depositor and the trustee in such
Other Securitization) and the Trustee of such Reportable Event in the form and
substance of the corresponding Form 8-K Disclosure Information, as set forth on
Schedule XIX, if applicable, and in a form that is readily convertible to an
XXXXX-compatible form (to the extent available to such party in such format), or
in such other form as otherwise agreed by the Depositor, the Trustee and such
party together with an Additional Disclosure Notification in the form attached
hereto as Exhibit AA. The Trustee shall have no duty under this Agreement to
monitor or enforce the performance by the parties listed on Schedule XIX of
their duties under this paragraph or proactively solicit or procure from any
such parties any Additional Form 8-K Disclosure information. Unless otherwise
directed by the Depositor, and subject to any comments received to such
disclosure from the Depositor by close of business on the 2nd Business Day after
such Reportable Event, the Trustee shall include the form and substance of the
Form 8-K Disclosure Information on the related Form 8-K. The Depositor will be
responsible for any reasonable fees charged and out-of-pocket expenses incurred
by the Trustee in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
No later than noon (New York City time) on the 3rd Business Day
after the Reportable Event, the Trustee shall prepare the Form 8-K. No later
than the end of business on the 3rd Business Day after the Reportable Event, the
Depositor (or, with respect to a Serviced Companion Loan if deposited into an
Other Securitization, the depositor in such Other Securitization) shall sign the
Form 8-K. If so directed by the Depositor, the Trustee shall (a) file such Form
8-K, upon signature thereof as provided in Section 13.14, not later than 5:30 pm
(New York City time) on the 4th Business Day after the related Reportable Event
or (b) use reasonable best efforts to file such Form 8-K, if the Trustee
received the signed Form 8-K after the end of business on the 3rd Business Day
after the Reportable Event, not later than 5:30 pm (New York City time) on the
4th Business Day after the related Reportable Event; provided that, if the
Trustee cannot file the Form 8-K prior to the deadline set forth in the
immediately preceding clause (b), the Trustee shall file such Form 8-K as soon
as possible thereafter. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures set
forth in Section 13.8(b). After filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 8-K.
The parties to this Agreement acknowledge (and each Additional Servicer and each
Reporting Sub-Servicer shall be required to acknowledge) that the performance by
the Trustee of its duties under this Section 13.7 related to the timely
preparation and filing of Form 8-K is contingent upon such parties (and, to the
extent applicable, any Additional Servicer or Reporting Sub-Servicer) observing
all applicable deadlines in the performance of their duties under this Section
13.7. The Trustee shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 8-K, where such failure results from the
Trustee's inability or failure to receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
The Reporting Servicers shall each promptly notify (and the
Reporting Servicers shall (a) use reasonable efforts to cause each Additional
Servicer and each Reporting Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to promptly notify) the
Depositor and the Trustee, but in no event later than noon on the 2nd Business
Day after its occurrence, of any Reportable Event applicable to it of which it
has actual knowledge to the extent such party is identified as a "Responsible
Party" on Exhibit AA with regard to such Reportable Event.
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports
(a) On or before January 30 of the first year in which the Trustee
is able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act. After the filing of Form 15, the
obligations of the parties to this Agreement under Sections 13.1, 13.2, 13.3,
13.4, 13.5 and 13.7 shall be suspended for so long as the Trust is not subject
to the reporting requirements of the Exchange Act.
(b) The Trustee shall promptly notify the Depositor (which notice
may be sent by facsimile or by email and which shall include the identity of
those Reporting Servicers who did not deliver such information) and each
Reporting Servicer that failed to deliver such information required to be
delivered by it under this Agreement, if all, or any portion of, any disclosure
information that the Trustee has actual knowledge of and that is required to be
included in any Form 8-K, Form 10-D or Form 10-K required to be filed pursuant
to this Agreement is not delivered to it within the delivery deadlines set forth
in this Agreement (including annual compliance statements pursuant to Section
13.9, annual reports on assessment of compliance with servicing criteria
pursuant to Section 13.10 and attestation reports pursuant to Section 13.11). If
the Trustee is unable to timely file with the Commission all or any required
portion of any Form 8-K, Form 10-D or Form 10-K required to be filed by this
Agreement because required disclosure information either was not delivered to it
or was delivered to it after the delivery deadlines set forth in this Agreement
or for any other reason, the Trustee shall promptly notify the Depositor (which
may be sent by facsimile or by email, and which notice shall include the
identity of those Reporting Servicers who either did not deliver such
information or delivered such information to it after the delivery deadlines set
forth in this Agreement) and each Reporting Servicer that failed to make such
delivery. In the case of Form 10-D and Form 10-K, each such Reporting Servicer
shall cooperate with the Depositor and the Trustee to prepare and file a Form
12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25
of the Exchange Act, which forms shall be filed no later than one calendar day
after the due date for the related Form 10-D or Form 10-K, as applicable. In the
case of Form 8-K, the Trustee shall, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D that is required to be
filed on behalf of the Trust. In the event that any previously filed Form 8-K,
Form 10-D or Form 10-K needs to be amended, the Trustee shall notify the
Depositor and such other parties as may be required and such parties shall
cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any
Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall
be signed by an authorized officer of or a senior officer of the Depositor in
charge of securitization, as applicable. The parties to this Agreement
acknowledge (and each Additional Servicer and each Reporting Sub-Servicer shall
be required to acknowledge) that the performance by the Trustee of its duties
under this Section 13.8 related to the timely preparation and filing of Form 15,
a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent
upon such parties (and, to the extent applicable, any Additional Servicer or
Reporting Sub-Servicer) performing their duties under this Section. The Trustee
shall have no liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution and/or
timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form
10-D or Form 10-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 13.9 Annual Compliance Statements
The Reporting Servicers (each a "Certifying Servicer") shall each
(and the Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to) deliver electronically
to the Depositor and the Trustee on or before March 1st (with a grace period
through March 7th), with respect to any Additional Servicer and each Reporting
Sub-Servicer (other than any party to this Agreement), or March 1st (with a
grace period through March 15th) or if such day is not a Business Day, the
immediately preceding Business Day (with no cure period), with respect to the
Certifying Servicers, of each year, commencing in March 2007, an Officer's
Certificate stating, as to the signer thereof, that (A) a review of such
Certifying Servicer's activities during the preceding calendar year or portion
thereof and of such Certifying Servicer's performance under this Agreement, or
the applicable sub-servicing agreement or primary servicing agreement in the
case of an Additional Servicer, has been made under such officer's supervision
and (B) to the best of such officer's knowledge, based on such review, such
Certifying Servicer has fulfilled all of its obligations under this Agreement,
or the applicable sub-servicing agreement or primary servicing agreement in the
case of an Additional Servicer, in all material respects throughout such year or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer and
the nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall have the right to review such Officer's
Certificate and, if applicable, consult with each Certifying Servicer, as
applicable, as to the nature of any failures by such Certifying Servicer, in the
fulfillment of any of the Certifying Servicer's obligations hereunder or under
the applicable sub-servicing or primary servicing agreement. None of the
Certifying Servicers or any Additional Servicer or any Reporting Sub-Servicer
shall be required to deliver, or to endeavor to cause the delivery of, any such
Officer's Certificate until April 15, in the case of a Certifying Servicer, or
April 1, in the case of any Additional Servicer (excluding any Primary Servicer)
or any Reporting Sub-Servicer (excluding any Primary Servicer), in any given
year so long as it has received written confirmation from the Depositor that a
Form 10-K is not required to be filed in respect of the Trust for the preceding
calendar year.
If the Michigan Plaza Companion Loan or Royal Airport Office B Note
is deposited into an Other Securitization, each Certifying Servicer responsible
for performing servicing functions with respect to the Michigan Plaza Companion
Loan or the Royal Airport Office Loan, as the case may be, shall provide, if
requested by a party to the applicable Other Pooling and Servicing Agreement, an
Officer's Certificate as described in this Section.
Section 13.10 Annual Reports on Assessment of Compliance with
Servicing Criteria
By March 1st (subject to a grace period through March 7th) or if
such day is not a Business Day, the immediately preceding Business Day (with no
cure period), the Reporting Servicers, each at its own expense, shall furnish
electronically (and each of the preceding parties, as applicable, shall (a) use
reasonable efforts to cause, by March 1st (subject to a grace period through
March 7th), each Additional Servicer or Reporting Sub-Servicer (other than a
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b)
cause, by March 1st (subject to a grace period through March 7th), each
Additional Servicer or Reporting Sub-Servicer (other than a party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to furnish, each at its own
expense), to the Trustee and the Depositor, a report on an assessment of
compliance with the Relevant Servicing Criteria with respect to commercial
mortgage backed securities transactions taken as a whole involving such party
that contains (A) a statement by such Reporting Servicer of its responsibility
for assessing compliance with the Relevant Servicing Criteria, (B) a statement
that such Reporting Servicer used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such Reporting Servicer's assessment
of compliance with the Relevant Servicing Criteria as of and for the period
ending the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 13.5, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria as of
and for such period.
No later than the end of each fiscal year for the Trust for which a
Form 10-K is required to be filed, the Master Servicers, the Special Servicers,
any Primary Servicer and the Trustee shall each forward to the Trustee and the
Depositor the name and address of each Additional Servicer and Reporting
Sub-Servicer engaged by it and what Relevant Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Additional
Servicer or Reporting Sub-Servicer. When the Master Servicers, the Special
Servicers, any Primary Servicer, the Trustee, each Additional Servicer and each
Reporting Sub-Servicer submit their respective assessments by March 1st (subject
to a grace period through March 7th), as applicable, to the Trustee, each such
party shall also at such time include, in its submission to the Trustee, the
assessment (and attestation pursuant to Section 13.11) of each Additional
Servicer and Reporting Sub-Servicer engaged by it.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Reporting Servicers as to the nature of any
material instance of noncompliance with the Relevant Servicing Criteria by the
respective Reporting Servicer, and (ii) the Trustee shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Schedule XVI and notify the Depositor of any exceptions.
None of the Master Servicers, the Special Servicers, any Primary Servicer, the
Trustee or any Additional Servicer or Reporting Sub-Servicer shall be required
to deliver, or to endeavor to cause the delivery of, any such reports until
April 15 in the case of the Master Servicers, the Special Servicers, any Primary
Servicer or the Trustee, or April 1 in the case of any Additional Servicer or
Reporting Sub-Servicer, in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year. The parties hereto
acknowledge that a material instance of noncompliance with the Relevant
Servicing Criteria reported on an assessment of compliance pursuant to this
Section 13.10 by the Reporting Servicers shall not, as a result of being so
reported, in and of itself, constitute a breach of such parties' obligations, as
applicable, under this Agreement unless otherwise provided for in this
Agreement.
If a Serviced Companion Loan is deposited into an Other
Securitization, each of the Master Servicers responsible for performing
servicing functions with respect to such Serviced Companion Loan, the Special
Servicers responsible for performing servicing functions with respect to such
Serviced Companion Loan (regardless of whether a Special Servicer has commenced
special servicing of any Mortgage Loan) and the Trustee, each at its own
expense, shall furnish (and each of the preceding parties, as applicable, shall
(a) use reasonable efforts to cause each Additional Servicer or Reporting
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Additional Servicer or Reporting
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to furnish, each at its own expense), if requested by a party to
the Other Pooling and Servicing Agreement, an annual report on assessment of
compliance as described in this Section and an attestation as described in
Section 13.11.
Section 13.11 Annual Independent Public Accountants' Servicing
Report
By March 1st (subject to a grace period through March 7th) or if
such day is not a Business Day, the immediately preceding Business Day (with no
cure period), of each year, commencing in March 2007, the Reporting Servicers,
each at its own expense, shall cause (and each of the Reporting Servicers, as
applicable, shall (a) use reasonable efforts to cause, by March 7th, each
Additional Servicer or Reporting Sub-Servicer (other than a party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause, by March
7th, each Additional Servicer or Reporting Sub-Servicer (other than a party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to cause, each at its own
expense) a registered public accounting firm (which may also render other
services to any Reporting Servicer) that is a member of the American Institute
of Certified Public Accountants to furnish electronically a report to the
Trustee and the Depositor, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Reporting
Servicer, which includes an assessment from such Reporting Servicer of its
compliance with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as to
whether such Reporting Servicer's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such Reporting Servicer's assessment of compliance
with the Relevant Servicing Criteria. If an overall opinion cannot be expressed,
such registered public accounting firm shall state in such report why it was
unable to express such an opinion. Such report must be available for general use
and not contain restricted use language.
Promptly after receipt of such report from the Reporting Servicers
(or any Additional Servicer or Reporting Sub-Servicer with which the applicable
Reporting Servicer has entered into a servicing relationship with respect to the
Mortgage Loans (other than a party to this Agreement)), (i) the Depositor shall
have the right to review the report and, if applicable, consult with the
applicable Reporting Servicer as to the nature of any material instance of
noncompliance by the Master Servicers, the Special Servicers, the applicable
Primary Servicer, the Trustee or any such Additional Servicer or Reporting
Sub-Servicer with the Servicing Criteria applicable to such Person, and (ii) the
Trustee shall confirm that each assessment submitted pursuant to Section 13.10
is coupled with an attestation meeting the requirements of this Section and
notify the Depositor of any exceptions. The Reporting Servicers shall not be
required to deliver, or to endeavor to cause the delivery of, such reports until
April 15 in the case of the Master Servicers, the Special Servicers, any Primary
Servicer or the Trustee, or April 1 in the case of any Additional Servicer or
Reporting Sub-Servicer, in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding fiscal year.
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification
Each of the Reporting Servicers (each an "Indemnifying Party") shall
indemnify and hold harmless each Certification Party (and, with respect to a
Reporting Servicer performing servicing functions with respect to a Serviced
Companion Loan in an Other Securitization, any comparable party in such Other
Securitization) the Depositor, their respective directors and officers, and each
other person who controls any such entity within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act (each a
"Certification Indemnitee") against any and all expenses, losses, claims,
damages and other liabilities, including without limitation the costs of
investigation, legal defense and any amounts paid in settlement of any claim or
litigation arising out of or based upon (i) the failure to perform its
obligations under this Article XIII by the times required herein or (ii) the
failure of any Additional Servicer or Reporting Sub-Servicer retained by it
(other than, in the case of the Master Servicers and Special Servicers, as
applicable, a Seller Sub-Servicer) to perform its obligations to the Depositor
or Trustee under this Article XIII by the times required herein. It is hereby
acknowledged that any Exchange Act reporting obligations under this Article XIII
relating to the Michigan Plaza Loan Group and the Royal Airport Office Loan
Group shall be obligations of the General Master Servicer, the General Special
Servicer and the Trustee, or any Additional Servicers or Reporting Sub-Servicers
appointed by either of them, as the case may be.
The Reporting Servicers shall (a) use reasonable efforts to cause
each Additional Servicer and each Reporting Sub-Servicer (other than a party to
this Agreement) with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) use
reasonable efforts to cause each Additional Servicer and each Reporting
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to indemnify and hold harmless each Certification Party (and,
with respect to a Reporting Servicer performing servicing functions with respect
to a Serviced Companion Loan in an Other Securitization, any comparable party in
such Other Securitization) from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of a
breach of its obligations to provide any of the annual compliance statements or
annual assessment of servicing criteria or attestation reports pursuant to this
Agreement, or the applicable sub-servicing or primary servicing agreement, as
applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Reporting
Servicers responsible for such indemnification hereunder (collectively with each
Additional Servicer and each Reporting Sub-Servicer "Performing Party") shall
(and the Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans (other than a party to this Agreement) and (b) use reasonable
efforts to cause each Additional Servicer and each Reporting Sub-Servicer with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans (other than a party to this Agreement), to)
contribute to the amount paid or payable to the Certification Party as a result
of the losses, claims, damages or liabilities of the Certification Party in such
proportion as is appropriate to reflect the relative fault of the Certification
Party on the one hand and the Performing Party on the other in connection with a
breach of the Performing Party's obligations pursuant to this Article XIII. The
Master Servicers, the Special Servicers, any Primary Servicer and the Trustee
shall use reasonable efforts to cause each Additional Servicer and each
Reporting Sub-Servicer with which it has entered into a servicing relationship
after the Closing Date with respect to the Mortgage Loans (other than a party to
this Agreement) to agree to the foregoing indemnification and contribution
obligations.
As promptly as reasonably practicable after receipt by any
Certification Indemnitee under this Section 13.12 of notice of the commencement
of any action, and as a condition precedent to the indemnification provided for
in this Section 13.12, such Certification Indemnitee will, if a claim in respect
thereof is to be made against the applicable Indemnifying Party under this
Section 13.12, notify the applicable Indemnifying Party in writing of the
commencement thereof. In case any such action is brought against any
Certification Indemnitee, the applicable Indemnifying Party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the Certification Indemnitee promptly after receiving the aforesaid
notice from such Certification Indemnitee, to assume the defense thereof, with
counsel selected by the applicable Indemnifying Party and reasonably
satisfactory to such Certification Indemnitee (which approval shall not be
unreasonably withheld, conditioned or delayed); provided, however, that if the
defendants in any such action include both the Certification Indemnitee and the
applicable Indemnifying Party, and the Certification Indemnitee shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other Indemnified Parties that are different from or additional to those
available to the applicable Indemnifying Party, the Certification Indemnitee
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Certification Indemnitee. Upon receipt of notice from the applicable
Indemnifying Party to such Certification Indemnitee of its election so to assume
the defense of such action and approval by the Certification Indemnitee of
counsel (which approval shall not be unreasonably withheld, conditioned or
delayed), the applicable Indemnifying Party will not be liable for any legal or
other expenses subsequently incurred by such Certification Indemnitee in
connection with the defense thereof, unless the applicable Indemnifying Party
has authorized (which authorization shall not be unreasonably withheld,
conditioned or delayed) the employment of counsel for the Certification
Indemnitee at the expense of the applicable Indemnifying Party. The applicable
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld, conditioned or delayed) but, if settled with such consent or if there
be a final judgment for the plaintiff, the applicable Indemnifying Party shall
indemnify the Certification Indemnitee from and against any loss or liability by
reason of such settlement or judgment. If the applicable Indemnifying Party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the Certification Indemnitee (which approval
shall not be unreasonably withheld, conditioned or delayed) or, if such
settlement provides for an unconditional release of the Certification Indemnitee
in connection with all matters relating to the proceeding that have been
asserted against the Certification Indemnitee in such proceeding by the other
parties to such settlement, which release does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
Certification Indemnitee without the consent of the Certification Indemnitee.
Section 13.13 Amendments
This Article XIII may be amended by the parties hereto pursuant to
Section 15.3 (without, in each case, any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement) for purposes of complying with Regulation AB and/or to conform to
standards developed within the commercial mortgage backed securities market;
provided that the reports and certificates required to be prepared and delivered
pursuant to Sections 13.9, 13.10 and 13.11 shall not be eliminated without
Rating Agency Confirmation.
Section 13.14 Exchange Act Report Signatures; Article XIII Notices
(a) Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so directed by the Depositor, by the Trustee pursuant to a
power of attorney provided to the Trustee by the Depositor in accordance with
procedures to be agreed upon by the Depositor and the Trustee and meeting the
requirements of Item 601(b)(24) of Regulation S-K. The Depositor shall provide
its signature or power of attorney to the Trustee by electronic or fax
transmission (with hard copy to follow by overnight mail) no later than noon
(New York City time) on the Business Day prior to the 15th calendar day
following the related Distribution Date for Form 10-D, and not later than the
end of business on the 3rd Business Day after the Reportable Event for Form 8-K
(provided, that in each case the Trustee shall not file the related form until
the Depositor has given its approval thereof). If a Form 8-K or Form 10-D cannot
be filed on time or if a previously filed Form 8-K or Form 10-D needs to be
amended, the Trustee will follow the procedures set forth in this Article XIII.
The signing party at the Depositor can be contacted at Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a
copy to Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq. and the signing party at the
Trustee, if applicable, can be contacted at LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services - Xxxxxx Xxxxxxx Capital I Inc., Series 2006-IQ11.
(b) The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or with respect to its having signed by power of
attorney any Form 8-K or Form 10-D if the power of attorney provided to it by
the Depositor pursuant to the immediately preceding paragraph was not properly
prepared, or if the requirements of Regulation S-K applicable to the use of
powers of attorney are not complied with, not resulting from its own negligence,
bad faith or willful misconduct.
(c) For the avoidance of doubt:
(i) No Master Servicer shall be subject to an Event of Default
pursuant to the last clause of the definition of "Event of Default" and no
Special Servicer shall be terminated pursuant to Section 9.30(b)(x), nor
shall any such party be deemed to not be in compliance under this
Agreement for purposes of Section 13.14, during any grace period provided
for in this Article XIII, provided, that if any such party fails to comply
with the delivery requirements of this Article XIII by the expiration of
any applicable grace period such failure shall constitute an Event of
Default or be grounds for termination, as applicable; and
(ii) No Master Servicer shall be subject to an Event of Default
pursuant to the last clause of the definition of "Event of Default" and no
Special Servicer shall be terminated pursuant to Section 9.30(b)(x) nor
shall any such party be deemed to not be in compliance under this
Agreement for purposes of Section 13.14, for failing to deliver any item
required under this Article XIII by the time required hereunder following
the date that the Trustee files the Form 15 relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act,
unless such items will be included in any Exchange Act report that relates
to any year in which the Trust was subject to the filing requirements of
the Exchange Act.
(d) Any notice or notification required to be delivered by the
Trustee to the Depositor pursuant to this Article XIII, may be delivered by
facsimile to Xxxxxx Friend at (000) 000-0000 or Xxxxxxx Xxxxxx at (212)
507-4011, via e-mail to Xxxxxx Friend at [email protected] or
Xxxxxxx Xxxxxx at [email protected], or telephonically by calling
Xxxxxx Friend at (000) 000-0000 or Xxxxxxx Xxxxxx at (000) 000-0000, or such
other contact information as may hereafter be furnished by the Depositor to the
Trustee.
Section 13.15 Termination of the Trustee and Sub-Servicers
Each of the Reporting Servicers shall terminate, in accordance with
the related sub-servicing agreement, any Sub-Servicer with which it has entered
into such sub-servicing agreement, and the Master Servicer shall terminate any
Primary Servicer in accordance with the terms of the applicable Primary
Servicing Agreement, if such Sub-Servicer or the applicable Primary Servicer, as
the case may be, is in breach of any of its obligations under such sub-servicing
agreement or the applicable Primary Servicing Agreement, as the case may be,
whose purpose is to facilitate compliance by the Depositor of the reporting
requirements of the Exchange Act or with the provisions of Regulation AB and the
related rules and regulations of the Commission.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Trustee if the Trustee
fails to comply with any of its obligations under this Article XIII; provided
that (a) such termination shall not be effective until a successor trustee shall
have accepted the appointment in accordance with Section 7.6 and all other
applicable provisions of this Agreement, (b) the Trustee may not be terminated
due to its failure to properly prepare or file on a timely basis any Form 8-K,
Form 10-K or Form 10-D or any amendments to such forms or any Form 12b-25 where
such failure results from the Trustee's inability or failure to receive, within
the exact time frames set forth in this Agreement any information, approval,
direction or signature from any other party hereto needed to prepare, arrange
for execution or file any such Form 8-K, Form 10-K or Form 10-D or any
amendments to such forms or any form 12b-25 not resulting from its own
negligence, bad faith or willful misconduct and (c) if, following the Trustee's
failure to comply with any of such obligations under Sections 13.4, 13.5, 13.7,
13.9, 13.10 or 13.11 on or prior to the dates by which such obligations are to
be performed pursuant to, and as set forth in, such Sections, (i) the Trustee
subsequently complies with such obligations before the Depositor gives written
notice to it that it is terminated in accordance with this Section 13.15 and
(ii) the Trustee's failure to comply does not cause it to fail in its
obligations to timely file the related Form 8-K, Form 10-D or Form 10-K, as the
case may be, by the related 8-K Filing Deadline, 10-D Filing Deadline or 10-K
Filing Deadline, then the Depositor shall cease to have the right to terminate
the Trustee under this Section 13.15 on the date on which such Form 8-K, Form
10-D or Form 10-K is so filed.
ARTICLE XIV
ADDITIONAL SERVICING PROVISIONS
Section 14.1 Enforcement of Due-on-Sale and Due-on-Encumbrance
Clauses; Assumption Agreements; Other Provisions
(a) (i) As to each Mortgage Loan (or a Serviced Companion Loan)
which contains a provision in the nature of a "due-on-sale" clause, which by its
terms:
(A) provides that such Mortgage Loan (or Serviced Companion Loan)
shall (or may at the mortgagee's option) become due and payable upon (i)
the full or partial sale or other transfer of an interest in the related
Mortgaged Property or (ii) a sale or transfer of direct or indirect
ownership interests in the related Mortgagor; or
(B) provides that such Mortgage Loan (or Serviced Companion Loan)
may not be assumed without the consent of the mortgagee in connection with
any such sale or other transfer; or
(C) provides that such Mortgage Loan (or Serviced Companion Loan) or
direct or indirect ownership interests in the related Mortgagor (other
than ownership interests in a Mortgagor with respect to a Co-op Mortgage
Loan) may be assumed or transferred without the consent of the mortgagee
provided certain conditions set forth in the Mortgage Loan documents are
satisfied;
the applicable Master Servicer shall forward to the applicable Special Servicer
any request for a waiver thereof, and the NCB Master Servicer (with respect to
any NCB, FSB Loan or NCCB Loan) or the General Special Servicer (with respect to
all Mortgage Loans or Serviced Companion Loans other than Co-op Mortgage Loans)
shall, if and to the extent necessary, enforce such due-on-sale clause. For the
avoidance of doubt, the applicable Master Servicer may not waive any due-on-sale
clause in, or consent to the assumption of, any Mortgage Loan (or Serviced
Companion Loan), or make any determination with respect to any Mortgage Loan (or
Serviced Companion Loan), which by its terms permits transfer or assumption
without lender consent provided certain conditions are satisfied, that such
conditions have been satisfied. The applicable Special Servicer shall enforce
such due-on-sale clause unless the General Special Servicer (in all cases other
than with respect to a Co-op Mortgage Loan) and the Co-op Special Servicer (with
respect to Co-op Mortgage Loans) determines, in accordance with the Servicing
Standard, that (1) not declaring an Event of Default (as defined in the related
Mortgage Loan documents) or (2) granting such consent, as applicable, would be
likely to result in a greater recovery (or an equal recovery, provided the other
conditions for an assumption or waiver of a due-on-sale clause are met), on a
present value basis (discounting at the related Mortgage Rate), than would
enforcement of such clause or the failure to grant such consent. If the
applicable Special Servicer determines that (1) not declaring an Event of
Default (as defined in the related Mortgage Loan documents) or (2) granting such
consent, as applicable, would be likely to result in a greater recovery (or an
equal recovery, provided that the other conditions for an assumption or waiver
of a due-on-sale clause are met), the NCB Master Servicer (with respect to any
NCB, FSB Loan or NCCB Loan) and the General Special Servicer (in all other
cases) shall take or enter into an assumption agreement from or with the
proposed transferee as obligor thereon, provided that (x) the credit status of
the prospective transferee is in compliance with the Servicing Standard and the
terms of the related Mortgage Loan documents and (y) with respect to any
Mortgage Loan which is a Significant Mortgage Loan, the applicable Special
Servicer shall have received Rating Agency Confirmation that such assumption
would not, in and of itself, cause a downgrade, qualification or withdrawal of
any of the then-current ratings assigned to the Certificates. To the extent
permitted by the related Mortgage Loan documents, the NCB Master Servicer (with
respect to any NCB, FSB Loan or NCCB Loan) and the General Special Servicer (in
all other cases) shall use reasonable efforts to cause the related Mortgagor to
pay the costs of such Rating Agency Confirmation, otherwise, such costs shall be
a Trust expense.
(ii) Notwithstanding the provisions of any Mortgage Loan,
foreclosure by the holder of a mezzanine loan on any collateral securing a
mezzanine loan to an affiliate of the related Mortgagor shall not, for
purposes of this Agreement, be deemed to be a violation of the due-on-sale
clause of the related Mortgage Loan documents or of clause (i) of this
Section 14.1(a) so long as the foreclosing party is a Permitted Mezzanine
Loan Holder, and other material requirements of the related intercreditor
agreement are satisfied.
(iii) None of the Master Servicers or the Special Servicers shall
(x) consent to the foreclosure of any mezzanine loan other than by a
Permitted Mezzanine Loan Holder or (y) consent to the transfer of any
mezzanine loan except to a Permitted Mezzanine Loan Holder, except, in
each case, as otherwise provided in Section 14.1(a)(i). Neither the
consent of the applicable Master Servicer nor the consent of the
applicable Special Servicer shall be required for the foreclosure by a
Permitted Mezzanine Loan Holder if an event of default has been declared
under the related Mortgage Loan(s) (and each Rating Agency has been
notified of such event of default), except as set forth in any related
intercreditor agreement. In no event shall the holder of a mezzanine loan
be required to pay any assumption fee, modification fee or other service
charge in connection with any foreclosure upon any collateral securing
such mezzanine loan, transfer of ownership of the related Mortgaged
Property to such holder of such mezzanine loan and/or assumption of the
related Mortgage Loan; provided<184> that such holder of such mezzanine
loan may be required to reimburse the applicable Master Servicer or
Special Servicer for any costs or expenses incurred by it in connection
with such foreclosure, transfer and/or assumption. Nothing herein shall
prevent a holder of a mezzanine loan from appointing a receiver or trustee
with respect to any collateral securing such mezzanine loan, foreclosing
upon any reserves, escrow accounts or cash collateral accounts pledged
under the related mezzanine loan (provided none of such accounts have been
pledged under the related Mortgage Loan) or otherwise taking an assignment
of any cash flows from any collateral securing such mezzanine loan.
(b) (i) As to each Mortgage Loan (or Serviced Companion Loan) which
contains a provision in the nature of a "due-on-encumbrance" clause, which by
its terms:
(A) provides that such Mortgage Loan (or Serviced Companion
Loan) shall (or, at the mortgagee's option, may) become due and
payable upon (x) the creation of any additional lien or other
encumbrance on the related Mortgaged Property or (y) an encumbrance,
pledge or hypothecation of direct or indirect ownership interests in
the related Mortgagor or its owners (including any incurrence of
mezzanine financing secured by ownership interests in the related
Mortgagor or its owners or the creation of preferred equity in the
related Mortgagor or its owners); or
(B) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related
Mortgaged Property or direct or indirect ownership interests in the
related Mortgagor (other than additional liens or encumbrances of
shares and proprietary leases of tenant-shareholders with respect to
Co-op Mortgage Loans); or
(C) provides that such Mortgaged Property or direct or
indirect ownership interests in the related Mortgagor (other than
encumbrances of shares and proprietary leases of tenant-shareholders
with respect to Co-op Mortgage Loans) may be further encumbered
without the consent of the mortgagee provided certain conditions set
forth in the Mortgage Loan documents are satisfied;
the applicable Master Servicer shall forward to the applicable Special Servicer
any request for a waiver thereof, and the NCB Master Servicer (with respect to
any NCB, FSB Loans or NCCB Loan) and the General Special Servicer (with respect
to any other Mortgage Loan) shall, if and to the extent necessary, enforce such
due-on-encumbrance clause. For the avoidance of doubt, the applicable Master
Servicer may not waive any due-on-encumbrance clause in, or consent to the
creation of any such additional lien or other encumbrance on the related
Mortgaged Property securing, any Mortgage Loan (or Serviced Companion Loan), or
make any determination with respect to any Mortgage Loan (or Serviced Companion
Loan), which by its terms permits encumbrance without lender consent provided
certain conditions are satisfied, that such conditions have been satisfied. The
applicable Special Servicer shall enforce such due-on-encumbrance clause unless
the General Special Servicer (in all cases other than with respect to any Co-op
Mortgage Loan) and the Co-op Special Servicer (with respect to any Co-op
Mortgage Loan): (x) determines, in accordance with the Servicing Standard, that
(1) not declaring an event of default under such Mortgage Loan or (2) granting
such consent, as applicable, would result in a greater or equal recovery on a
present value basis (discounting at the related Mortgage Rate) than would
enforcement of such clause or the failure to grant such consent; and (y)(A) with
respect to any Mortgage Loan which (i) is a Significant Mortgage Loan or
represents 2% or more of the aggregate outstanding principal balances of all of
the Mortgage Loans in the Trust or (ii) by itself, or as part of a
Cross-Collateralized Loan group or group of Mortgage Loans with affiliated
Mortgagors has (a) a Loan-to-Value Ratio equal to or greater than 85% or (b) a
Debt Service Coverage Ratio equal to or less than 1.2x (in each case, treating
the existing debt on the subject Mortgaged Property and the proposed additional
debt as if such total debt were a single Mortgage Loan), receives from S&P and
(B) with respect to any Mortgage Loan that is one of the ten largest Mortgage
Loans by Stated Principal Balance of all Mortgage Loans at such time (treating
any group of Cross-Collateralized Mortgage Loans or any group of Mortgage Loans
with affiliated Mortgagors as a single Mortgage Loan), receives from Fitch,
prior Rating Agency Confirmation that (1) not declaring an event of default
under such Mortgage Loan or (2) granting such consent, as applicable, would not,
in and of itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates. To the extent permitted by
the related Mortgage Loan documents, the NCB Master Servicer (with respect to
any NCB, FSB Loans or NCCB Loan) or the General Special Servicer (with respect
to any other Mortgage Loan) shall use reasonable efforts to cause the Mortgagor
to pay the costs associated with such Rating Agency Confirmation, otherwise,
such costs shall be a Trust expense.
If the applicable Special Servicer, in accordance with the Servicing
Standard, determines with respect to any Mortgage Loan (or Serviced Companion
Loan), which by its terms permits transfer, assumption or further encumbrance
without lender consent provided certain conditions are satisfied, that such
conditions have not been satisfied, then the applicable Master Servicer will use
reasonable efforts to not permit the transfer, assumption or further encumbrance
with respect to such Mortgage Loan (or Serviced Companion Loan).
(ii) Notwithstanding the foregoing provisions, and regardless of
whether a particular Co-op Mortgage Loan contains specific provisions
regarding the incurrence of subordinate debt, or prohibits the incurrence
of subordinate debt, or requires the consent of the mortgagee in order to
incur subordinate debt, the NCB Master Servicer may, nevertheless, in
accordance with the Servicing Standard, without the need to obtain any
consent hereunder (and without the need to obtain a Rating Agency
Confirmation), permit the related Mortgagor to incur subordinate debt if
the NCB, FSB Subordinate Debt Conditions have been met (as certified in
writing to the Trustee and the Operating Adviser by the NCB Master
Servicer no later than five Business Days prior to the making of the
subject subordinate loan without right of reimbursement from the Trust)
which certification shall include notice of the circumstances of the
waiver, including information necessary for the Operating Adviser to
determine whether the NCB, FSB Subordinate Debt Conditions have been
satisfied); provided that, the NCB Master Servicer shall not waive any
right it has, or grant any consent it is otherwise entitled to withhold,
in accordance with any related "due-on-encumbrance" clause under any Co-op
Mortgage Loan, pursuant to this paragraph, unless in any such case, all
associated costs and expenses are covered without any expense to the
Trust.
(c) Any approval required to be obtained by the applicable Master
Servicer from the applicable Special Servicer for any action taken by the
applicable Master Servicer pursuant to this Section 14.1 with respect to a
non-Specially Serviced Mortgage Loan (or Serviced Companion Loan) (the giving of
which approval shall be subject to the Servicing Standard and Section 8.19)
shall be deemed given if not denied in writing within fifteen (15) Business Days
(or, in the case of an assumption transaction, 15 days) after receipt by the
applicable Special Servicer of the applicable Master Servicer's written
recommendation and analysis and any additional information requested by the
applicable Special Servicer or the Operating Adviser, as applicable. If any such
action taken by the applicable Master Servicer pursuant to this Section 14.1
requires the approval of the Operating Adviser, then such approval shall be
deemed given if not denied in writing within fifteen (15) Business Days (or, in
the case of an assumption transaction, 15 days), which 15-Business Day (or 15
day, as applicable) period shall coincide with the applicable Special Servicer's
15-Business Day (or 15 day, as applicable) period to object set forth in the
preceding sentence. Nothing in this Section 14.1 shall constitute a waiver of
the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 14.2, the applicable
Special Servicer shall not agree to modify, waive or amend any payment term of
any Mortgage Loan (or Serviced Companion Loan) in connection with the taking of,
or the failure to take, any action pursuant to this Section 14.1.
(e) With respect to any Mortgage Loan (or Serviced Companion Loan)
that permits the related Mortgagor to incur subordinate indebtedness secured by
the related Mortgaged Property (except for Co-op Mortgage Loans as to which the
NCB Subordinate Debt Conditions are satisfied), the applicable Master Servicer
or the applicable Special Servicer, as applicable, shall enforce the rights of
the lender, if any, under the related Mortgage Loan documents to require such
Mortgagor to require the lender of such subordinate indebtedness to enter into a
subordination and standstill agreement with the Trust.
(f) With respect to any Mortgage Loan (or Serviced Companion Loan),
subject to the related Mortgage Loan documents, neither the applicable Master
Servicer nor the applicable Special Servicer shall permit the related Mortgagor
to substitute any real property, any rights with respect to real property, or
any other real property interest whatsoever for the Mortgaged Property securing
such Mortgage Loan (or Serviced Companion Loan) as of the Closing Date without
receipt of an Opinion of Counsel, at the expense of the Mortgagor, to the effect
that the substitution will not cause the related Mortgage Loan to fail to
qualify as a "qualified mortgage" as defined under Section 860G(a)(3) of the
Code while such Mortgage Loan is owned by either REMIC Pool.
(g) The General Special Servicer acknowledges that the General
Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicers of the SunTrust Loans and the MM Loans and with respect to
Post-Closing Requests (as defined in the applicable Primary Servicing
Agreements) pursuant to Section 8.4 of this Agreement. Such Primary Servicing
Agreements classify certain Post-Closing Requests as Category 1 Requests (as
defined in the Primary Servicing Agreements), and grant the related Primary
Servicers certain authority to evaluate and process such requests in accordance
with this Agreement, the applicable Primary Servicing Agreement and the
applicable Mortgage Loan documents.
(h) Notwithstanding the foregoing, in the event a Master Servicer
(or, if applicable, a Primary Servicer) receives a request from a Mortgagor
under a UCMFI Loan pursuant to the provisions of any such Mortgage Loan (other
than a UCMFI Loan that is a Specially Serviced Mortgage Loan) that expressly
permits, subject to any conditions set forth in the Mortgage Loan documents, the
assignment of the related Mortgaged Property, the assumption of such Mortgage
Loan or the incurrence of any subordinate or mezzanine debt, such Master
Servicer (or, if applicable, a Primary Servicer) (each, a "UCMFI Servicer
Request") shall obtain relevant information (the "UCMFI Servicer Request
Information") for purposes of evaluating and processing such UCMFI Servicer
Request. The UCMFI Servicer Information shall include, without limitation,
UCMFI's recommendation (which shall include the reason therefor) and the
materials upon which such recommendation is based. UCMFI shall then forward to
the General Special Servicer the UCMFI Servicer Request Information, and the
General Special Servicer shall review such information and provide its written
consent or disapproval of the related UCMFI Servicer Request, and consent by the
General Special Servicer shall be deemed to be given if not denied in writing 7
Business Days after the receipt of such UCMFI Servicer Request Information;
provided, however, that the General Special Servicer may request additional
UCMFI Servicer Request Information if it is determined by the General Special
Servicer and UCMFI in accordance with the Servicing Standard that the UCMFI
Servicer Request Information is materially deficient for the General Special
Servicer to provide its consent. The General Special Servicer will have an
additional 5 Business Days after the receipt of any such additional UCMFI
Servicer Request Information to provide its written consent or disapproval, and
consent by the General Special Servicer shall be deemed to have been given if
not denied in writing within 5 Business Days after the receipt of any such
additional UCMFI Servicer Request Information. For the purpose of the first
sentence of this paragraph (h), the term "expressly permits" shall include
outright permission to incur subordinate or mezzanine debt upon satisfaction of
certain conditions or to assign the mortgaged property to and cause the
assumption of the Mortgage Loan by another Person if the conditions to the
transaction that are set forth in the related Mortgage Loan documents do not
include the approval of the lender or the exercise of lender discretion (other
than confirming the satisfaction of the other conditions to the transaction set
forth in the related Mortgage Loan documents that do not include any other
approval or exercise).
(i) In addition, the Special Servicers acknowledge that, pursuant to
the Sub-Servicing Agreement, the General Master Servicer has delegated certain
tasks, rights and obligations with respect to the IXIS Loans to the IXIS
Sub-Servicers and with respect to the UCMFI Loans to UCMFI, in its capacity as
Primary Servicer.
(j) With respect to the Royal Airport Office Loan Group,
notwithstanding anything contained in this Section 14.1, with respect to any
matter contained in this Section 14.1 that requires the consent of the
applicable Master Servicer, Special Servicer or Operating Adviser, as
applicable, such consent shall be obtained in accordance with the related
Co-Lender Agreement and within the time periods set forth therein.
Section 14.2 Modifications, Waivers, Amendments and Consents
(a) Subject to the provisions of Section 8.19 and this Section 14.2
(and, in the case of any Serviced Loan Group, subject to the terms of the
related Co-Lender Agreement), the applicable Master Servicer and the applicable
Special Servicer may, on behalf of the Trustee, agree to any modification,
waiver or amendment of any term of any Mortgage Loan without the consent of the
Trustee or any Certificateholder.
(i) For any non-Specially Serviced Mortgage Loan (and Serviced
Companion Loan), and subject to the rights of the applicable Special
Servicer set forth below, the applicable Master Servicer shall be
responsible subject to the other requirements of this Agreement with
respect thereto, for any request by a Mortgagor for the consent of the
mortgagee or a modification, waiver or amendment of any term thereof;
provided that such consent or modification, waiver or amendment would not
(except as provided in Section 5.1) affect the amount or timing of any
scheduled payments of principal, interest or other amounts payable under
such Mortgage Loan, affect the obligation of the related Mortgagor to pay
a Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment by the Mortgagor during a prepayment lockout period, result in
the release of the related Mortgagor from any material term thereunder,
waive any rights thereunder with respect to any guarantor thereof, relate
to the release or substitution of any material collateral for such
Mortgage Loan or, in the reasonable judgment of the applicable Master
Servicer, materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payments of amounts due thereon; and provided,
further, that this Section 14.2(a)(i) does not apply to waivers
contemplated by Section 8.2, Section 9.2 or Section 14.1. To the extent
consistent with the foregoing, the applicable Master Servicer shall have
the right to grant approvals or waivers or otherwise take actions with
respect to, as applicable, the following (the following items not to be
considered exclusive):
(A) approving routine leasing activity with respect to: (1)
leases for properties that are residential cooperative properties;
and (2) leases for properties other than residential cooperative
properties for less than the lesser of (a) 15,000 square feet and
(b) 20% of the related Mortgaged Property; provided that (1) except
with respect to any Co-op Mortgage Loan, no subordination,
non-disturbance and attornment agreement (an "SNDA") exists with
respect to such lease and (2) no such lease is a Ground Lease; and
provided further that, except with respect to any Co-op Mortgage
Loan, no Master Servicer shall grant or approve (but shall forward
to the applicable Special Servicer for its approval) any requests
for (or any waiver, consent, approval, amendment or modification in
connection with) an SNDA or approval of a lease that contains an
SNDA;
(B) approving annual budgets for the related Mortgaged
Property; provided that no such budget (1) relates to a fiscal year
in which an Anticipated Repayment Date occurs, (2) except with
respect to Co-op Mortgage Loans provides for the payment of
operating expenses in an amount equal to more than 110% of the
amounts budgeted therefor for the prior year or (3) provides for the
payment of any material expenses to any affiliate of the Mortgagor
(other than the payment of a management fee to any property manager
if such management fee is no more than the management fee in effect
on the Cut-off Date);
(C) waiving any provision of a Mortgage Loan not requiring the
receipt of a Rating Agency Confirmation if such Mortgage Loan is not
a Significant Mortgage Loan and the related provision of such
Mortgage Loan does not relate to a "due-on-sale" or
"due-on-encumbrance" clause (other than waivers of
"due-on-encumbrance" clauses for Co-op Mortgage Loans as to which
the NCB Subordinate Debt Conditions are satisfied) or defeasance
(which shall be subject to the terms of Section 8.3(h) hereof);
(D) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(E) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan
documents expressly require the related Mortgagor thereunder to make
such releases upon the satisfaction of certain terms or conditions
shall be made as required by such Mortgage Loan documents);
(F) with respect to any non-Specially Serviced Mortgage Loans
(or Serviced Companion Loans), the applicable Master Servicer may
(without the consent of the applicable Special Servicer) grant a
Mortgagor's request for consent to subject the related Mortgaged
Property to an easement, right-of-way or similar agreement for
utilities, access, parking, public improvements or another similar
purpose and may consent to subordination of the related Mortgage
Loan(s) (or Serviced Companion Loan(s)) to such easement,
right-of-way or similar agreement; provided that the applicable
Master Servicer shall have determined (i) in accordance with the
Servicing Standard that such easement, right-of-way or similar
agreement will not materially interfere with the then-current use of
the related Mortgaged Property or the security intended to be
provided by such Mortgage and will not materially or adversely
affect the value of such Mortgaged Property and (ii) that no REMIC
Pool will fail to qualify as a REMIC as a result thereof and that no
tax on "prohibited transactions" or "contributions" after the
Closing Date would be imposed on any REMIC Pool as a result thereof;
and provided, further that the applicable Master Servicer shall
cause the Mortgagor to pay the costs (including attorneys' fees and
expenses) associated with the determination described in clause
(ii);
(G) consenting to changing the property manager at the request
of the Mortgagor, for so long as, other than with respect to MM
Loans, (A) the successor property manager is not affiliated with the
Mortgagor and is a reputable manager of similar properties and (B)
the related Mortgage Loan (other than a Co-op Mortgage Loan) has an
unpaid principal balance of less than $5,000,000 or, if the related
Mortgage Loan is a Co-op Mortgage Loan, such Co-op Mortgage Loan has
an unpaid principal balance of less than $10,000,000. With respect
to MM Loans, the applicable Master Servicer may consent to a
changing of the property manager at the request of the Mortgagor if
(A) the successor property manager is a reputable property manager
of similar properties and either (x) the successor property manager
is not affiliated with the Mortgagor or (y) the successor property
manager is affiliated with the Mortgagor and the outgoing property
manager is also affiliated with the Mortgagor and (B) the related MM
Loan has an unpaid principal balance of less than $5,000,000;
(H) waive any Penalty Charges on any non-Specially Serviced
Mortgage Loan in connection with any delinquent payment on such
Mortgage Loan;
(I) with respect to Co-op Mortgage Loans, consent to the
modification or amendment of the related Mortgagor's organizational
documents; and
(J) disbursements of any earnouts or holdback amounts;
provided, however, that if in the reasonable judgment of the applicable Master
Servicer any request by a Mortgagor for consent of the mortgagee or any
modification, waiver or amendment in connection with an assumption transaction
of a non-Specially Serviced Mortgage Loan contemplated by Section 14.1 is not
included within the scope of this clause (i), the applicable Master Servicer
shall forward the Mortgagor's request to the applicable Special Servicer for its
approval; provided, further, that with respect to any non-Specially Serviced
Mortgage Loan and any request for the disbursement of any earnouts or holdback
amounts with respect to such non-Specially Serviced Mortgage Loan, it being
understood and agreed that for purposes of this Agreement, the disbursement of
earnouts or holdback amounts shall mean the disbursement or funding to a
Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the
loan proceeds of the applicable non-Specially Serviced Mortgage Loan until
certain conditions precedent thereto relating to the satisfaction of performance
related criteria (i.e. project reserve thresholds, lease-up requirements, sales
requirements, etc.), as set forth in the applicable Mortgage Loan documents have
been satisfied, the applicable Master Servicer shall process the Mortgagor's
request and submit such request for approval by the applicable Special Servicer
(which approval shall be deemed given if the request is not denied by the
applicable Special Servicer in writing to the applicable Master Servicer within
ten (10) Business Days of the applicable Special Servicer's receipt of such
request); provided, further, that if in the reasonable judgment of the
applicable Master Servicer any request by a Mortgagor for consent of the
Mortgagee or any modification, waiver or amendment is not included within the
scope of this clause (i), the applicable Special Servicer shall be responsible
for such request in accordance with clause (ii) below; and provided, further,
that with respect to the Mortgage Loan designated on the Mortgage Loan Schedule
as Mortgage Loan No. 5 (Xxxxxxx Square Mall), the applicable Master Servicer
shall not consent to changing the property manager on such Mortgage Loan
(regardless of the outstanding principal balance of such Mortgage Loan) without
obtaining a Rating Agency Confirmation at the expense of the related Mortgagor.
(ii) The Special Servicers shall be responsible for any request by a
Mortgagor for the consent of the mortgagee and any modification, waiver or
amendment of any term of any Mortgage Loan for which the applicable Master
Servicer is not responsible, as provided above, or if such consent,
request, modification, waiver or amendment relates to a Specially Serviced
Mortgage Loan or a Mortgage Loan that is on the most recent CMSA Servicer
Watch List with respect to a Mortgage Loan other than a Co-op Mortgage
Loan, has a Debt Service Coverage Ratio (based on the most recently
received financial statements and calculated on a trailing twelve month
basis) less than the greater of 1.1x or 20% less than the Debt Service
Coverage Ratio as of the Cut-off Date or with respect to which an event of
default has occurred in the preceding 12 months.
(b) All modifications, waivers or amendments of any Mortgage Loan
shall be (i) in writing (except for waivers of Penalty Charges; provided,
however, that any waivers of Penalty Charges shall be reflected in the
applicable Master Servicer's or Special Servicer's servicing records for the
relevant Mortgage Loan) and (ii) effected in accordance with the Servicing
Standard.
(c) Neither the applicable Master Servicer nor, except as provided
in Section 14.2(d), the applicable Special Servicer, on behalf of the Trustee,
shall agree or consent to any modification, waiver or amendment of any term of
any non-Specially Serviced Mortgage Loan if such modification, waiver or
amendment would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums and Yield
Maintenance Charges, but excluding any amounts payable as additional
servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or in
connection with a defeasance or pursuant to Section 9.12, result in a
release of the lien of the Mortgage on any material portion of the related
Mortgaged Property without a corresponding Principal Prepayment in an
amount not less than the fair market value (as determined by an appraisal
by an Appraiser delivered at the expense of the related Mortgagor and upon
which the applicable Master Servicer and the applicable Special Servicer,
as applicable, may conclusively rely) of the property to be released; or
(iv) in the judgment of the applicable Master Servicer or applicable
Special Servicer, as applicable, otherwise materially impair the security
for such Mortgage Loan or reduce the likelihood of timely payment of
amounts due thereon;
unless either (x) the subject Mortgage Loan is in default or default is
reasonably foreseeable or (y) the applicable Special Servicer has determined
(and may rely on an opinion of counsel in making the determination) that the
modification, waiver or amendment will not be a "significant modification" of
the subject Mortgage Loan within the meaning of Treasury regulations section
1.860G-2(b). Nothing contained in this Section 14.2(c) shall modify the scope of
the modifications, amendments, waivers and consents for Mortgage Loans for which
the applicable Master Servicer and Special Servicer, as applicable, are
responsible under Sections 14.2(a)(i) and (a)(ii).
(d) Notwithstanding anything herein to the contrary, with respect to
each Serviced Loan Group, the related Master Servicer shall be responsible for
obtaining Rating Agency Confirmation that a proposed action will not result in a
downgrade, qualification or withdrawal of any of the then-current ratings
assigned to the Certificates, but only to the extent such Rating Agency
Confirmation is required hereunder or under the terms of the relevant Mortgage
Loan documents with respect to any Mortgage Loan in such Serviced Loan Group
that is not a Specially Serviced Mortgage Loan or REO Loan.
(e) Notwithstanding Sections 14.2(a)(i) and 14.2(c), but subject to
Sections 14.2(g) and 14.2(h), the applicable Special Servicer may (i) reduce the
amounts owing under any Specially Serviced Mortgage Loan by forgiving principal,
accrued interest and/or any Prepayment Premium or Yield Maintenance Charge, (ii)
reduce the amount of the Monthly 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 Note or Mortgage
relating to a Specially Serviced Mortgage Loan, (iv) extend the maturity of any
Specially Serviced Mortgage Loan, (v) waive Excess Interest if such waiver
conforms to the Servicing Standard, (vi) permit the release or substitution of
collateral for a Specially Serviced Mortgage Loan and/or (vii) accept a
Principal Prepayment during any lockout period; provided that (A) the related
Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or,
in the judgment of the applicable Special Servicer, such default is reasonably
foreseeable and (B) in the sole good faith judgment of the applicable Special
Servicer and in accordance with the Servicing Standard, such modification would
not reduce the recovery on the subject Mortgage Loan to Certificateholders (or,
in the case of a Serviced Loan Group, Certificateholders and the holder of the
related Serviced Companion Loan), as a collective whole, on a present value
basis (the relevant discounting of amounts that will be distributable to
Certificateholders or the holder of any related Serviced Companion Loan to be
performed at the related Mortgage Rate).
The determination of the applicable Special Servicer contemplated by
clause (B) of the proviso to the prior paragraph of this Section 14.2(e) shall
be evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the applicable Master Servicer and describing in reasonable detail the basis
for the applicable Special Servicer's determination and the considerations of
the applicable Special Servicer forming the basis of such determination (which
shall include but shall not be limited to information, to the extent available,
such as related income and expense statements, rent rolls (for properties other
than residential cooperative properties), occupancy status and property
inspections, and shall include an Appraisal of the related Mortgage Loan or
Mortgaged Property, the cost of which Appraisal shall be advanced by the
applicable Master Servicer as a Servicing Advance).
(f) The General Special Servicer may agree to any waiver,
modification or amendment of a Mortgage Loan (other than a Co-op Mortgage Loan),
and the Co-op Special Servicer may agree to any waiver, modification or
amendment of a Co-op Mortgage Loan, that is not in default or as to which
default is not reasonably foreseeable if it consults with counsel (and if it is
determined by such Special Servicer to be necessary, provides the Trustee with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such modification or, if such expense cannot be collected from
the related Mortgagor or such other Person, to be paid by the Servicer as a
Servicing Advance)) to obtain advice regarding whether the contemplated waiver,
modification or amendment (i) will not be a "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b),
(ii) will not cause (x) any REMIC Pool to fail to qualify as a REMIC for
purposes of the Code or (y) any REMIC Pool to be subject to any tax under the
REMIC Provisions.
(g) Neither the applicable Master Servicer nor the applicable
Special Servicer shall consent to, make or permit any modification, waiver or
amendment of any term of any Mortgage Loan that would cause an Adverse REMIC
Event with respect to either REMIC Pool, an Adverse Grantor Trust Event with
respect to the Grantor Trust Pool or any event similar to the foregoing with
respect to any REMIC or grantor trust that includes a B Note.
(h) In no event shall the applicable Special Servicer (i) extend the
Maturity Date of a Mortgage Loan beyond October 1, 2040; (ii) extend the
Maturity Date of any Mortgage Loan at an interest rate less than the lower of
(A) the interest rate in effect prior to such extension or (B) the then
prevailing interest rate for comparable loans, as determined by the applicable
Special Servicer by reference to available indices for commercial mortgage
lending; (iii) if the Mortgage Loan is secured by a ground lease, extend the
Maturity Date of such Mortgage Loan beyond a date which is 10 years prior to the
expiration of the term of such Ground Lease (after giving effect to all
extension options); or (iv) defer interest due on any Mortgage Loan in excess of
5% of the Stated Principal Balance of such Mortgage Loan; provided that with
respect to clause (iii) above, the applicable Special Servicer gives due
consideration to the term of such Ground Lease prior to any extension beyond a
date 20 years prior to the expiration of the term of such Ground Lease (after
giving effect to all extension options).
(i) [Reserved]
(j) The applicable Master Servicer and the applicable Special
Servicer may, as a condition to granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within its discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and is permitted by the terms
of this Agreement, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request (provided that such fee does
not constitute a "significant modification" of such Mortgage Loan under Treasury
regulations section 1.860G-2(b)), and (ii) any related costs and expenses
incurred by it. In no event shall the applicable Master Servicer or the
applicable Special Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(k) The applicable Master Servicer and the applicable Special
Servicer shall, except with respect to waivers of Penalty Charges, notify each
other, the holder of each affected B Note and the Trustee, in writing, of any
modification, waiver or amendment of any term of any Mortgage Loan (including
fees charged the Mortgagor) agreed to by the applicable Master Servicer or the
applicable Special Servicer, as the case may be, and the date thereof, and shall
deliver to the Trustee (in the case of the applicable Special Servicer, with a
copy to the applicable Master Servicer) for deposit in the related Mortgage
File, an original counterpart of the agreement relating to such modification,
waiver or amendment, promptly (and in any event within ten Business Days)
following the execution thereof. The applicable Master Servicer or applicable
Special Servicer, as applicable, shall notify the Rating Agencies of any
modification, waiver, except with respect to waivers of Penalty Charges, or
amendment of any term of any Significant Mortgage Loan agreed to by the
applicable Master Servicer or the applicable Special Servicer, as the case may
be. Copies of each agreement whereby any such modification, waiver or amendment
of any term of any Mortgage Loan is effected shall be made available for review
upon prior request during normal business hours at the offices of the applicable
Master Servicer or Special Servicer, as applicable, pursuant to Section 8.15 or
9.7 hereof, as applicable.
With respect to each Mortgagor that has been established as a
"bankruptcy-remote entity," neither the applicable Master Servicer nor the
applicable Special Servicer shall consent to (x) the amendment by such Mortgagor
of its organizational documents in a manner that would violate any covenant of
such Mortgagor relating to its status as a separate of bankruptcy-remote entity
or (y) any action that would violate any covenant of such Mortgagor relating to
its status as a separate or bankruptcy-remote entity, unless granting such
consent is consistent with the Servicing Standard and, with respect to a
Mortgagor under any Significant Mortgage Loan, the applicable Master Servicer or
the applicable Special Servicer, as applicable, has obtained Rating Agency
Confirmation that such amendment or action would not result in a downgrade or
withdrawal of any rating on a Class of Certificates rated by such Rating Agency.
Section 14.3 Primary Servicer Authority
Notwithstanding any contrary provision of this Agreement (including
this Article XIV), the General Special Servicer acknowledges that the General
Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicers for the UCMFI Loans, the SunTrust Loans and the MM Loans with
respect to Post-Closing Requests pursuant to Section 8.4 of this Agreement.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, each Primary
Servicing Agreement for the UCMFI Loans, the SunTrust Loans and the MM Loans
provides for the General Master Servicer's (or, with respect to the MM Loans,
the Primary Servicer's) determination of materiality of such condition, term or
provision requiring approval or consent and the referral of such condition, term
or provision to the General Special Servicer for consent in accordance with the
terms of such Primary Servicing Agreements upon a determination of materiality.
The General Special Servicer hereby acknowledges such provisions, including that
"materiality" shall include the existence of an Adverse REMIC Event. Nothing in
this Agreement, however, shall grant the applicable Primary Servicers greater
authority, discretion or delegated rights over Post-Closing Requests than are
set forth in the applicable Primary Servicing Agreements.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 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 15.2 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 15.3 Amendment
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC, or
the Class EI Grantor Trust as a grantor trust) for the purposes of federal
income tax law (or comparable provisions of state income tax law), (iv) to make
any other provisions with respect to matters or questions arising under or with
respect to this Agreement not inconsistent with the provisions hereof, (v) to
modify, add to or eliminate the provisions of Article III relating to transfers
of Residual Certificates, (vi) to amend any provision herein to the extent
necessary or desirable to list the Certificates on a stock exchange, including,
without limitation, the appointment of one or more sub-paying agents and the
requirement that certain information be delivered to such sub-paying agents or
(vii) to make any other amendment which does not adversely affect in any
material respect the interests of any Certificateholder (unless such
Certificateholder consents). No such amendment effected pursuant to clause (i),
(ii) or (iv) of the preceding sentence shall (A) adversely affect in any
material respect the interests of any Holder not consenting thereto, without the
consent of 100% of the Certificateholders adversely affected thereby or (B)
adversely affect the status of any REMIC Pool as a REMIC (or the Class EI
Grantor Trust as a grantor trust). Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel 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 Rating Agency Confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with Rating Agency Confirmation 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
15.3. The Trustee may request, at its option, to receive a Nondisqualification
Opinion and/or an Opinion of Counsel that such amendment will not result in an
Adverse Grantor Trust Event, as applicable, and an Opinion of Counsel that any
amendment pursuant to this Section 15.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) 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) no such amendment shall eliminate or reduce a Master Servicer's
or the Trustee's obligation to make an Advance (including, without limitation,
in the case of the General Master Servicer, the obligation to advance on the
Serviced Companion Loans) or alter the Servicing Standard except as may be
necessary or desirable to comply with the REMIC Provisions, (iv) adversely
affect the status of any REMIC Pool as a REMIC for federal income tax purposes
(as evidenced by a Nondisqualification Opinion) and the Class EI Grantor Trust
as grantor trusts without the consent of 100% of the Certificateholders
(including the Class R-I, Class R-II and Class R-III Certificateholders), (v)
adversely affect in any material respect the interests of the Holders of the
Certificates in a manner other than as described in the immediately preceding
clause (i), without the consent of the Holders of all Certificates affected
thereby, (vi) significantly change the activities of the Trust, without the
consent of the Holders of Certificates representing more than 50% of all the
Voting Rights or (vii) modify the provisions of this Section 15.3 without the
consent of the Holders of all Certificates then outstanding; provided that no
such amendment may modify Section 14.2 of this Agreement without Rating Agency
Confirmation. The Trustee shall not consent to any amendment to this Agreement
pursuant to this subsection (c) unless it shall have first received a
Nondisqualification Opinion and/or an Opinion of Counsel that such amendment
will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event, as
applicable, and an Opinion of Counsel that any amendment pursuant to this
Section 15.3(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 15.3(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 15.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this
Section 15.3, the parties hereto agree that this Agreement may not be amended in
any manner that is reasonably likely to have an adverse effect on any Primary
Servicer without first obtaining the written consent of such Primary Servicer.
(h) Notwithstanding the fact that the provisions in Section 15.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trustee, the Master Servicers or the Special
Servicers, 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 15.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this
Section 15.3, the parties hereto agree that this Agreement may be amended
pursuant to Section 13.13 herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation, except as provided in Section 13.13.
Section 15.4 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 15.5 Notices
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by (A) in the
case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to General Counsel; (B) in
the case of the Trustee, Paying Agent and Certificate Registrar at the Corporate
Trust Office; (C) in the case of the General Master Servicer, Xxxxx Fargo Bank,
N.A., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Commercial Mortgage Servicing, with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx
Fargo Bank, N.A., 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(D) in the case of the General Special Servicer, LNR Partners, Inc., 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq., facsimile number (000) 000 0000, and
Attention: Xxxxxx Xxxxxxx, facsimile number (000) 000-0000, with copies to Xxxx
Xxxxx, Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP, 0000 Xxxxxxxx Xxxx., Xxxxx
0000, Xxxxx, Xxxxxxx 00000, facsimile number (000) 000-0000; (E) in the case of
the NCB Master Servicer, NCB, FSB, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.,
00000 Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing, Fax: (202)
000-0000; (F) in the case of the Co-op Special Servicer, National Consumer
Cooperative Bank, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxxxxx Xxxxx, Real Estate Master Servicing, Fax: (000) 000-0000; (G) in the
case of MSMC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend,
with a copy to General Counsel; (H) in the case of NCB, FSB, NCB, FSB, 0000 Xxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx Xxxxxxxx; (I) in the
case of IXIS, IXIS Real Estate Capital Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx; (J) in the case of the National
Consumer Cooperative Bank, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X., 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing, Fax: (000) 000-0000;
(K) in the case of MM, Massachusetts Mutual Life Insurance Company, c/o Babson
Capital Management LLC, 0000 Xxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, Attention:
Xxxxxx Xxxxx, Managing Director, TS21, with a copy to Massachusetts Mutual Life
Insurance Company, 0000 Xxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, Attention: Vice
President, Real Estate Xxx, XX0; (L) in the case of UCMFI, Union Central
Mortgage Funding, Inc., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx 00000,
Attention: Xxxx X. Xxxxxxxxx; (M) in the case of SunTrust, SunTrust Bank, 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx, with a copy to
Xxxxx Xxxxxxxx; and (N) in the case of the initial Operating Adviser, LNR
Securities Holdings, LLC, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, telecopy number: (000) 000-0000. Any
notice required or permitted to be mailed to a Holder shall be given by first
class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice.
Section 15.6 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 15.7 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 15.8 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 15.9 Benefits of Agreement
Nothing in this Agreement or in the Certificates, express or
implied, shall give to any Person, other than the parties to this Agreement
(including any Primary Servicer to the extent applicable to such Primary
Servicer) and their successors hereunder and the Holders of the Certificates,
any benefit or any legal or equitable right, power, remedy or claim under this
Agreement; provided, however, that each holder of a Serviced Companion Loan is
an intended third-party beneficiary in respect of the rights afforded it under
this Agreement. This Agreement may not be amended in any manner that would
adversely affect the rights of any third party beneficiary without its
reasonable consent. Each holder of a right to receive Excess Servicing Fees
shall be a third party beneficiary to this Agreement with respect to its right
to receive such Excess Servicing Fees.
Section 15.10 Special Notices to the Rating Agencies
(a) The Trustee (or the applicable Master Servicer in the case of
clauses (vi) and (vii) below) shall give prompt notice to the Rating Agencies,
the applicable 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 Sections 13.13 or
15.3 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 pursuant to
Section 2.3(a) hereof;
(iv) any resignation of a Master Servicer, a Special Servicer, the
Paying Agent, the Operating Adviser or the Trustee pursuant to this
Agreement;
(v) the appointment of any successor to a Master Servicer, the
Trustee, the Paying Agent, the Operating Adviser or a 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 14.1;
(vii) waiver of a prohibition on subordinate liens on the Mortgaged
Properties (other than with respect to a Co-op Mortgage Loan as to which
the NCB, FSB Subordinate Debt Conditions have been satisfied);
(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) Each Certifying Servicer shall, and the Certifying Servicers
shall each (i) use reasonable efforts to cause each Additional Servicer and each
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (ii) cause each Additional Servicer and each Sub-Servicer
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to (x) forward a copy of each annual compliance statement pursuant to
Section 13.9 hereof, (y) forward a copy of each annual report on assessment with
servicing criteria pursuant to Section 13.10 hereof and (z) forward a copy of
each annual independent public accountants' servicing report pursuant to Section
13.11 hereof to the Rating Agencies and the Operating Adviser.
(c) 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, 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, a division of The
XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(d) 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.
(e) The Master Servicers shall deliver to the Rating Agencies and
the Depositor any other information as reasonably requested by the Rating
Agencies and the Depositor, and the General Master Servicer shall deliver to the
Primary Servicers and the General Special Servicer each of the reports required
to be delivered by the General Master Servicer to the Primary Servicers and the
General Special Servicer pursuant to the terms of this Agreement. The Trustee,
the Paying Agent and the Special Servicers 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.
(f) Any notice or other document required to be delivered or mailed
by the Depositor, the Master Servicers, 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 15.11 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 15.12 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) 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 (including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies) identified on the Mortgage Loan Schedule, 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, the Interest Reserve Accounts, the Reserve
Account, all REO Accounts, and the Certificate Accounts, 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;
(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 (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(iii) All cash and non-cash proceeds 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 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the applicable
Master Servicers 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 Servicers
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 a Master Servicer or the Depositor
in such property. In connection herewith, the Trustee shall have all of the
rights and remedies of a secured party and creditor under the Uniform Commercial
Code as in force in the relevant jurisdiction.
Section 15.13 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 15.14 Rating Agency Monitoring Fees
The parties hereto acknowledge that on the Closing Date the Sellers
will pay the ongoing monitoring fees of the Rating Agencies relating to the
rating of the Certificates and that no monitoring fees are payable subsequent to
the Closing Date in respect of the rating of the Certificates. The Master
Servicers 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 a Master
Servicer following an Event of Default of such Master Servicer).
IN WITNESS WHEREOF, the Depositor, the General Master Servicer, the
General Special Servicer, the NCB Master Servicer, the Co-op Special Servicer,
the Trustee, the Paying Agent and the Certificate Registrar 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
--------------------------------------
Title: Vice President
XXXXX FARGO BANK, N.A.,
as General Master Servicer
By:/s/ Xxxxxxx X. XxXxxxx
--------------------------------------
Title: Vice President
LNR PARTNERS, INC.,
as General Special Servicer
By:/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
NCB, FSB,
as NCB Master Servicer
By:/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
NATIONAL CONSUMER COOPERATIVE BANK, as
Co-op Special Servicer
By:/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee, Paying Agent and
Certificate Registrar
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
SUNTRUST BANK, in its capacity as Primary
Servicer solely with respect to
Sections 5.1(g), 8.3, 8.4, 8.10, 14.1,
14.2, 14.3, 15.10(b) and Article XIII
of this Agreement
By:/s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
By:/s/ Xxxxxxx X. XxXxxxx
--------------------------------------
Title: Sr. Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, in its capacity as Primary
Servicer solely with respect to
Sections 5.1(g), 8.3, 8.4, 8.10,
8.25(d), 14.1, 14.2, 14.3, 15.10(b)
and Article XIII of this Agreement
By: BABSON CAPITAL MANAGEMENT LLC,
its authorized agent
By:/s/ Xxxxxx Xxxxx
--------------------------------------
Title: Managing Director
UNION CENTRAL MORTGAGE FUNDING, INC.,
in its capacity as Primary Servicer
solely with respect to Sections
5.1(g), 8.3, 8.4, 8.10, 14.1, 14.2,
14.3, 15.10(b) and Article XIII of
this Agreement
By:/s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of June in the year 2006, before me, the undersigned,
personally appeared Xxxxxx X. Friend, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument, and that such individual made such appearance before the
undersigned in the City of New York (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF CALIFORNIA )
: ss.:
COUNTY OF SAN FRANCISCO )
On the June 7, 2006, before me, June X. Xxxxxxxxx, Notary Public
personally appeared Xxxxxxx X. XxXxxxx, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on
the instrument, the person upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ June X. Xxxxxxxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF FLORIDA )
: ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 7th day of
March, 2006, by Xxxxxx X. Xxxxxx, as Vice President on behalf of LNR Partners,
Inc., a Florida corporation; such individual personally known to me or has
produced a driver's license as identification.
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 2nd day of June in the year 2006, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxxx Xxxxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 2nd day of June in the year 2006, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxx Xxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxxx Xxxxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF ILLINOIS )
: ss.:
COUNTY OF XXXX )
On the 7th day of June in the year 2006, before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, Vice President, personally known to me or
proved to me on the basis of satisfactory evidence to be the individuals whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their capacities, and that by their signatures on the
instrument, the individuals, or the person upon behalf of which the individuals
acted, executed the instrument, and that such individuals made such appearance
before the undersigned in the City of Chicago, Illinois (insert the city or
other political subdivision and the state or county or other place the
acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxx Xxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF GEORGIA )
: ss.:
COUNTY OF XXXXXX )
On the 6th day of June in the year 2006, before me, the undersigned,
personally appeared Xxx Xxxxxxxx and Xxxxx XxXxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in Atlanta, Georgia (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Notary Public
[Notary Seal]
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF HAMPDEN )
On the 2nd day of June in the year 2006, before me, the undersigned,
personally appeared Xxxxxx Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument, and that such individual made such appearance before the
undersigned in Springfield, MA - Hamden County (insert the city or other
political subdivision and the state or county or other place the acknowledgment
was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxx Xxxxx
-----------------------------------
Notary Public
[Notary Seal]
STATE OF OHIO )
: ss.:
COUNTY OF XXXXXXXX )
On the 5th day of June in the year 2006, before me, the undersigned,
personally appeared Xxxx X. Xxxxxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument, and that such individual made such appearance before the
undersigned in the City of Cincinnati (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Notary Public
[Notary Seal]
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 PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.552% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1 CERTIFICATES AS OF THE
CLOSING DATE: $51,720,000
CERTIFICATE BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$51,720,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-1-1 CUSIP No.: [__________]
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-1 Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-1 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the Co-op Special
Servicer, the General Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-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 PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.765% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1A CERTIFICATES AS OF THE
CLOSING DATE: $329,905,000
CERTIFICATE BALANCE OF THIS CLASS A-1A
CERTIFICATE AS OF THE CLOSING DATE:
$329,905,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-1A-1 CUSIP No.: [__________]
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
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op 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 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the Co-op Special
Servicer, the General Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-3
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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-2 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.693% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE
CLOSING DATE: $162,900,000
CERTIFICATE BALANCE OF THIS CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE:
$162,900,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-2-1 CUSIP No.: [__________]
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-2 Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
the Paying Agent, the Certificate Registrar, the General Master Servicer, the
NCB Master Servicer, the General Special Servicer and the Co-op Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-2 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-4
[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 PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.739% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-3 CERTIFICATES AS OF THE
CLOSING DATE: $96,800,000
CERTIFICATE BALANCE OF THIS CLASS A-3
CERTIFICATE AS OF THE CLOSING DATE:
$96,800,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-3-1 CUSIP No.: [__________]
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-3 Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-3 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-5
[FORM OF CLASS A-4 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.775% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-4 CERTIFICATES AS OF THE
CLOSING DATE: $489,955,000
CERTIFICATE BALANCE OF THIS CLASS A-4
CERTIFICATE AS OF THE CLOSING DATE:
$489,955,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-4-1 CUSIP No.: [__________]
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-4 Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-4 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-6
[FORM OF CLASS A-M CERTIFICATE]
THIS CLASS A-M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS A-M GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-M CERTIFICATES AS OF THE
CLOSING DATE: $161,611,000
CERTIFICATE BALANCE OF THIS CLASS A-M
CERTIFICATE AS OF THE CLOSING DATE:
$161,611,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-M-1 CUSIP No.: [__________]
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-M Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-7
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS A-J GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-J CERTIFICATES AS OF THE
CLOSING DATE: $147,471,000
CERTIFICATE BALANCE OF THIS CLASS A-J
CERTIFICATE AS OF THE CLOSING DATE:
$147,471,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-J-1 CUSIP No.: [__________]
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-J Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-J Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-8
[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 PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE
GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
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 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS B GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $30,302,000
CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE:
$30,302,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. B-1 CUSIP No.: [__________]
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class B Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-9
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE
GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
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 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS C GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $12,121,000
CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE:
$12,121,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. C-1 CUSIP No.: [__________]
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class C Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-10
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER, THE GENERAL
SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
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 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS D GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $22,221,000
CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
$22,221,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. D-1 CUSIP No.: [__________]
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class D Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-11
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS E GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $16,161,000
CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
$[16,161,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. E-1 CUSIP No.: [__________](1)
[__________](2)
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
the Paying Agent, the Certificate Registrar, the General Master Servicer, the
NCB Master Servicer, the General Special Servicer and the Co-op Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-12
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS F GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $14,141,000
CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE:
$[14,141,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. F-1 CUSIP No.: [__________](1)
[__________](2)
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class F Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-13
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE
GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS 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.
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 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS G GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $18,182,000
CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING DATE:
$[18,182,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. G-1 CUSIP No.: [__________](1)
[__________](2)
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class G Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class G Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-Op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-14
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
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 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
THE PASS-THROUGH RATE ON THE CLASS H GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATES WILL BE A PER ANNUM RATE BANK, N.A.
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $14,141,000
CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
$[14,141,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. H-1 CUSIP No.: [__________](1)
[__________](2)
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class H Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class H Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-15
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $8,080,000
CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE:
$[8,080,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. J-1 CUSIP No.: [__________](1)
[__________](2)
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class J Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class J Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-Op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $4,041,000
CERTIFICATE BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE:
$[4,041,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. K-1 CUSIP No.: [__________](1)
[__________](2)
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class K Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE SPECIAL CO-OP SERVICER, THE PRIMARY
SERVICERS 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $4,040,000
CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
$[4,040,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. L-1 CUSIP No.: [__________](1)
[__________](2)
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class L Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the Genereal Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-18
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $6,060,000
CERTIFICATE BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE:
$[6,060,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. M-1 CUSIP No.: [__________](1)
[__________](2)
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"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, NCB Master
Servicer, General Special Servicer and the Co-op Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the General Master
Servicer, the NCB Master Servicer, The General Special Servicer, the Co-op
Special Servicer or the Operating Adviser may treat the Person in whose name
this Certificate is registered as of the related Record Date as the owner hereof
for the purpose of receiving distributions as provided in the Pooling and
Servicing Agreement and for all other purposes whatsoever, and none of the
Trustee, the Paying Agent, the General Master Servicer, the NCB Master Servicer,
the General Special Servicer, the Co-op Special Servicer or the Operating
Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-19
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS N CERTIFICATES AS OF THE CLOSING
DATE: $6,061,000
CERTIFICATE BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE:
$[6,061,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. N-1 CUSIP No.: [__________](1)
[__________](2)
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class N Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class N Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-20
[FORM OF CLASS O CERTIFICATE]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS O CERTIFICATES AS OF THE CLOSING
DATE: $2,020,000
CERTIFICATE BALANCE OF THIS CLASS O
CERTIFICATE AS OF THE CLOSING DATE:
$[2,020,000](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. O-1 CUSIP No.: [__________](1)
[__________](2)
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class O Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class O Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS P CERTIFICATE]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 5.534% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: JUNE 1, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: JULY 17, 2006
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $18,181,631
CERTIFICATE BALANCE OF THIS CLASS P
CERTIFICATE AS OF THE CLOSING DATE:
$[18,181,631](1) [0](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. P-1 CUSIP No.: [__________](1)
[__________](2)
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class P Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op 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 P Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th
day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-22
[FORM OF CLASS EI CERTIFICATE]
THIS CLASS EI CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE GENERAL MASTER SERVICER,
THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL
SERVICER, THE PRIMARY SERVICERS 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.
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 2006-IQ11
PERCENTAGE INTEREST OF THIS CLASS EI GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF JUNE 1, 2006
CUT-OFF DATE: JUNE 1, 2006 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: JUNE 8, 2006 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE:
JULY 17, 2006
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. EI-1 CUSIP No.: [__________]
CLASS EI 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 LNR Securities Holdings, LLC is the registered
owner of the interest evidenced by this Certificate in the Class EI Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Paying Agent, the Certificate Registrar, the General Master Servicer, the
NCB Master Servicer, the General Special Servicer and the Co-op 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
EI Certificates specified on the face hereof. The Certificates are designated as
the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2006-IQ11 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.
Class EI Certificate represents a beneficial ownership interest in a
portion of the Trust that is treated as grantor trust for federal income tax
purposes, and represents a beneficial ownership of Excess Interest in respect of
Mortgage Loans having a hyper-amortization feature. Any amount of Excess
Interest on deposit in the Excess Interest Sub-account for the related
Collection Period will be paid to the holders of the Class EI Certificates, to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th 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.
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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS EI CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-23
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
PAYING AGENT, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE GENERAL
SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS 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
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
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 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 "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-I
CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE,
WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY
OTHER UNITED STATES TAX 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 TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
PERCENTAGE INTEREST OF THIS CLASS R-I GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF JUNE 1, 2006
CUT-OFF DATE: JUNE 1, 2006 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: JUNE 1, 2006 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: JULY 17, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. R-I CUSIP No.: [__________]
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class R-I
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
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 the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11 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.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including as
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 15th day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-24
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
PAYING AGENT, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE GENERAL
SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS 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
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
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 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 "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-II
CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE,
WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY
OTHER UNITED STATES TAX 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-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED TAX 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-II
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
PERCENTAGE INTEREST OF THIS CLASS R-II GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF JUNE 1, 2006
CUT-OFF DATE: JUNE 1, 2006 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: JUNE 8, 2006 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: JULY 17, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. R-II CUSIP No.: [__________]
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class R-II
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11 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.
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 15th day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-25
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER,
THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS 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
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
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 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 "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM THIS CLASS R-III CERTIFICATE IS
ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE
MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED
STATES TAX 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 TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-III
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
PERCENTAGE INTEREST OF THIS CLASS R-III GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF JUNE 1, 2006
CUT-OFF DATE: JUNE 1, 2006 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: JUNE 8, 2006 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: JULY 17, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. R-III CUSIP No.: [__________]
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class
R-III Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer and the Co-op Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11 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.
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 15th day of each month or, if such 15th 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 therefor 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-26
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
PAYING AGENT, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE GENERAL
SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 0.030% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
INITIAL NOTIONAL AMOUNT OF THIS CLASS X NCB MASTER SERVICER: NCB, FSB
CERTIFICATE: $[__________], AS OF THE
CLOSING DATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF JUNE 1, 2006 PARTNERS, INC.
CUT-OFF DATE: JUNE 1, 2006 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CLOSING DATE: JUNE 8, 2006
FIRST DISTRIBUTION DATE: JULY 17, 2006 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE NOTIONAL AMOUNT OF THE CLASS TRUSTEE: LASALLE BANK NATIONAL
X CERTIFICATES AS OF THE CLOSING DATE: ASSOCIATION
$1,616,114,631
No. X-[1][2][3][4] CUSIP No.: [__________](1)
[__________](2)
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class X Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer and the Co-op Special Servicer, a
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th day of each month
or, if such 15th 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 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, 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 therefor 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 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-27
[FORM OF CLASS X-Y CERTIFICATE]
THIS CLASS X-Y CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE
REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER, THE GENERAL
SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS 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-Y 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.
THIS CERTIFICATE REPRESENTS A "REGULAR 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, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ11
INITIAL PASS-THROUGH RATE: 0.100% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
INITIAL NOTIONAL AMOUNT OF THIS CLASS GENERAL SPECIAL SERVICER: LNR
X-Y CERTIFICATE: $ [__________], AS OF PARTNERS, INC.
THE CLOSING DATE
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF JUNE 1, 2006 ASSOCIATION
CUT-OFF DATE: JUNE 1, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JUNE 8, 2006
FIRST DISTRIBUTION DATE: JULY 17, 0000
XXXXXXXXX XXXXXXXX XXXXXX XX THE CLASS
X-Y CERTIFICATES AS OF THE CLOSING
DATE: $189,020,788
No. X-Y-1 CUSIP No.: [__________]
CLASS X-Y 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 NATIONAL CONSUMER COOPERATIVE BANK is the
registered owner of the interest evidenced by this Certificate in the Class X-Y
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
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-Y Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 15th day of each month
or, if such 15th 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 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, 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 therefor 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-Y 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 to a
Certificateholder 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 Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser 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 Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III 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 final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with 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, in whole only, the Mortgage Loans and any
other property, if any, 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: June 8, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-Y CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE 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
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
------------------------------------------ OTHER IDENTIFYING NUMBER OF
ASSIGNEE
------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
---------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock
Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
June 8, 2006
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
IXIS Real Estate Capital Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019
Union Central Mortgage Funding, Inc.
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
NCB, FSB
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
SunTrust Bank
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Massachusetts Mutual Life Insurance Company
0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11
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, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any such
documents contained in each Mortgage File are appropriate for their represented
purposes, or are other than what they purport to be on their face.
The Trustee acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders 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 assets of Class EI
Grantor Trust and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
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 including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:____________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
June [__], 2006
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
IXIS Real Estate Capital Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019
Union Central Mortgage Funding, Inc.
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
NCB, FSB
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
SunTrust Bank
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Massachusetts Mutual Life Insurance Company
0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11
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), (vi), (viii) and (xii) of the definition of "Mortgage File" required to be
in the 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 required to be delivered pursuant to the Pooling and Servicing Agreement
and any applicable Primary Servicing Agreement), to the extent actually known by
a Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement (assuming that, with respect to the documents referred to in
clause (xii) of the definition of Mortgage File, an original letter of credit in
the possession of the Trustee is not so required, unless a Responsible Officer
of the Trustee has actual knowledge to the contrary), 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 or the appraisal of the related Mortgaged
Property, the street address of the Mortgaged Property 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 as required by
the terms of the Pooling and Servicing Agreement. 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
identified in the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any of
the documents contained in each Mortgage File are appropriate for their
represented purposes, or are other than what they purport to be on their face or
are in recordable form.
The Trustee acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders 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 assets of Class EI
Grantor Trust and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
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
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-IQ11
In connection with the administration of the Mortgage File held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo Bank, N.A., as general master
servicer (the "General Master Servicer"), NCB, FSB, as NCB master servicer (the
"NCB Master Servicer" and, together with the General Master Servicer, as
applicable, the "Master Servicer"), LNR Partners, Inc., as general special
servicer (the "General Special Servicer"), National Consumer Cooperative Bank,
as co-op special servicer (the "Co-op Special Servicer" and, together with the
General Special Servicer, as applicable, the "Special Servicer"), and you as
trustee, paying agent and certificate registrar (in such capacity, the
"Trustee"), the undersigned as a [Master][Special] Servicer hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
(Such [Master] [Special] Servicer hereby certifies that all amounts
received in connection with ______________ the Mortgage Loan have been or will
be, following such [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.
(Such [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.
(Such [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 Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[Name of applicable [Master] [Special]
Servicer]
By:____________________________________
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS TO DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11, Class [__] (the
"Certificates")
Dear Sirs:
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 June 8, 2006 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as general master servicer, NCB, FSB, as NCB master servicer, LNR
Partners, Inc., as general special servicer, National Consumer Cooperative Bank,
as co-op special servicer, and you as trustee, paying agent and certificate
registrar. 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
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation 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 Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Transferred 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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11 (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 Principal Balance or
Notional Amount as of June 8, 2006 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2006
(the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as general master servicer,
NCB, FSB, as NCB master servicer, LNR Partners, Inc., as general special
servicer, National Consumer Cooperative Bank, as co-op special servicer, and you
as trustee, paying agent and certificate registrar. 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.
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 LaSalle Bank National Association, as 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 $____________________ 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.
___ 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 only
Yes No 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-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 LaSalle Bank National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee
or the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales
to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11 (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 Principal
Balance as of June 8, 2006 (the "Closing Date") of $__________][evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2006
(the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as general master servicer,
NCB, FSB, as NCB master servicer, LNR Partners, Inc., as general special
servicer, National Consumer Cooperative Bank, as co-op special servicer, and
you, as trustee, paying agent and certificate registrar. 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 (B) 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 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.
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.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a pledge, disposition or other transfer of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any 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 Transferred Certificate, any interest in any Transferred
Certificate or any other similar security, which (in the case of any of
the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any Person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
6. 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.
7. 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.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11, Class (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
principal balance or notional amount as of June 8, 2006 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as general master servicer, NCB, FSB, as NCB master servicer, LNR
Partners, Inc., as general special servicer, National Consumer Cooperative Bank,
as co-op special servicer, and LaSalle Bank National Association, as trustee,
paying agent and certificate registrar. 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 Certificate Registrar and the Trustee,
that:
1. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and
the Certificate Owner desiring to effect such transfer has received either
(A) a certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel 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 the Transferred Certificate will bear
legends substantially to the following effect:
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.
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.
5. 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 similar security.
6. 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.
7. 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.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11, Class (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
principal balance or notional amount as of June [__], 2006 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as general master servicer, NCB, FSB, as
NCB master servicer, LNR Partners, Inc., as general special servicer, National
Consumer Cooperative Bank, as co-op special servicer, and LaSalle Bank National
Association, as trustee, paying agent and certificate registrar. 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 Certificate Registrar
and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate or any interest therein may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee
or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws
or (ii) sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to
effect such transfer has received either (A) a certification from such
Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel with respect to the
availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
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.
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.
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.
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 LaSalle Bank National Association, as 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 $____________________ 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.
___ 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 only
Yes No 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:______________________________
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 Certificate
Registrar and the Trustee, 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 only
Yes No for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11, 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," a possession of the United States or a
person with respect to whom income from the Residual Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
Person. (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 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.
4. 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.)
5. 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.
6. 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.
7. The Transferee's taxpayer identification number is _.
8. 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 (F) of Section 3.3(e)
which authorizes the Paying Agent to deliver payments on the Residual
Certificate to a Person other than the Transferee and clause (G) of Section
3.3(e) which authorizes the Certificate Registrar 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.
9. 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.
10. 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.
11. 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.
12. The Transferee is a United States Tax Person. For this purpose,
a United States Tax Person is a citizen or resident of the United States, 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 or
any state thereof or the District of Columbia including any entity treated as
such a corporation or partnership for federal income tax purposes, (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 (or to the extent provided in applicable
Treasury Regulations, a trust in existence on August 20, 1996, which is eligible
to be treated as a United States Tax Person).
13. The Transferee will not cause income from the Residual
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other United States Tax Person.
14. Check the applicable paragraph:
The present value of the anticipated tax liabilities associated with
holding the Residual Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to pay tax at
the highest rate currently specified in Section 11(b) of the Code (but the tax
rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Transferee.
That the transfer of the Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Residual 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 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 U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Residual 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.
None of the above.
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__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11, Class [__] (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 June 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as general master servicer, NCB, FSB, as
NCB master servicer, LNR Partners, Inc., as general special servicer, National
Consumer Cooperative Bank, as co-op special servicer, and you, as trustee,
paying agent and certificate registrar. 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 (i)
any of the statements made by the Transferee under the Transfer Affidavit are
false or (ii) 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 TRANSFEROR CERTIFICATE FOR TRANSFERS OF REGULATION S CERTIFICATES
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2006-IQ11, Class (the "Certificates")
TO: Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
Clearstream Banking, societe anonyme
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: __________, 20[__]
By:______________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G
[Reserved]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, N.A., as General Master Servicer
NCB, FSB, as NCB Master Servicer
LNR Partners, Inc., as General Special Servicer
National Consumer Cooperative Bank, as Co-op Special Servicer
LaSalle Bank National Association, as Trustee, Paying Agent and
Certificate Registrar
This is to notify you as to the transfer of the beneficial interest
in $_______________ of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ11, 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 ID 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(1) 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]
-----------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2006-IQ11, Class (the "Certificates")
TO: LaSalle Bank National Association, as Certificate Registrar
Attn: [__________]
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 June 1, 2006 (the "Pooling and Servicing
Agreement") among you, Xxxxxx Xxxxxxx Capital I Inc., Xxxxx Fargo Bank, N.A,
NCB, FSB, LNR Partners, Inc., National Consumer Cooperative Bank, and LaSalle
Bank National Association, U.S. $__________ principal amount of the
above-captioned Certificates held by us or on our behalf are beneficially owned
by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Certificates
in transactions that did not require registration under the United States
Securities Act of 1933, as amended (the "Securities Act"). As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Securities Act.
We further certify that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, Brussels office, as operator of the
Euroclear System]
or
[CLEARSTREAM BANK, S.A.]
By:____________________________________
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
All NCB, FSB Loans
All NCCB Loans
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT I
(MSMC)
[See Exhibit 99.1 to this Form 8-K]
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II
(IXIS)
[See Exhibit 99.2 to this Form 8-K]
EXHIBIT K-3
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT III
(MM)
[See Exhibit 99.4 to this Form 8-K]
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV
(NCB, FSB)
[See Exhibit 99.3 to this Form 8-K]
EXHIBIT K-5
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT V
(UCMFI)
[See Exhibit 99.6 to this Form 8-K]
EXHIBIT K-6
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT VI
(SUNTRUST)
[See Exhibit 99.5 to this Form 8-K]
EXHIBIT K-7
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT VII
(NCCB)
[See Exhibit 99.7 to this Form 8-K]
EXHIBIT L
[Reserved]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDERS REPORT
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
Administrator: ABN AMRO ACCT: Analyst:
Xxxxx Xxxxxxxx 312.904.5444 REPORTING PACKAGE TABLE OF CONTENTS Xxxxxxx Xxxx 714.259.6253
[email protected] [email protected]
------------------------------------------------------------------------------------------------------------------------------------
Issue Id: SAMPMORS Page(s) Closing Date: 8-Jun-2006
Statements to Certificateholders Page 2 First Payment Date: 17-Jul-2006
Monthly Data File Cash Recon Page 3 Rated Final Payment Date: 15-Oct-2042
Name: SAMPMORS_200606_3.ZIP Bond Interest Reconciliation Page 4 Determination Date: 10-Jun-2006
Bond Interest Reconciliation Page 5 -------------------------------------
Shortfall Summary Report Page 6 Trust Collection Period
Asset-Backed Facts ~ 15 Month Loan -------------------------------------
Status Summary Page 7 5/11/2006 - 6/10/2006
Asset-Backed Facts ~ 15 Month Loan -------------------------------------
Payoff/Loss Summary Page 8
Mortgage Loan Characteristics Page 9-11
Delinquent Loan Detail Page 12
Loan Level Detail Page 13
Realized Loss Detail Page 14
Collateral Realized Loss Page 15
Appraisal Reduction Detail Page 16
Material Breaches Detail Page 17
Historical Collateral Prepayment Page 18
Specially Serviced (Part I) - Loan
Detail Page 19
Specially Serviced (Part II) -
Servicer Comments Page 20
Summary of Loan Maturity Extensions Page 21
Rating Information Page 22
Other Related Information Page 23
------------------------------------------------------------------------------------------------------------------------------------
PARTIES TO THE TRANSACTION
------------------------------------------------------------------------------------------------------------------------------------
Depositor: Xxxxxx Xxxxxxx Capital I Inc.
Underwriter: Xxxxxx Xxxxxxx & Co. Incorporated/IXIS Securities North America Inc./SunTrust Capital Markets Inc./Greenwich Capital
Markets, Inc./Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Master Servicer: Xxxxx Fargo Bank, National Association/NCB, FSB
Special Servicer: LNR Partners, Inc./National Consumer Cooperative Bank
Rating Agency: Fitch Ratings/Standard & Poor's Rating Services
NCB, FSB will act as Master Servicer with respect to the NCB Mortgage Loans. National Consumer Cooperative Bank will act as special
servicer with respect to the residential cooperative mortgage loans sold to
the trust by NCB, FSB and National Consumer Cooperative Bank.
------------------------------------------------------------------------------------------------------------------------------------
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
LaSalle Factor Line 800.246.5761
PAGE 1 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
--------------------------------------------------------------------------------------------------------------
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE (1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT (2) ADJUSTMENT RATE
CUSIP NEXT RATE(3)
--------------------------------------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------------------------------------
Total P&I Payment
Notes: (1) N denotes notional balance not included in total (2) Accrued Interest
Plus/Minus Interest Adjustment Minus Deferred Interest equals Interest Payment
(3) Estimated. * Denotes Controlling Class
PAGE 2 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
CASH RECONCILIATION SUMMARY
INTEREST SUMMARY
Current Scheduled Interest 0.00
Less Deferred Interest 0.00
Less PPIS Reducing Scheduled Int 0.00
Plus Gross Advance Interest 0.00
Less ASER Interest Adv Reduction 0.00
Less Other Interest Not Advanced 0.00
Less Other Adjustment 0.00
-----------------------------------------------
Total 0.00
===============================================
UNSCHEDULED INTEREST:
Prepayment Penalties 0.00
Yield Maintenance Penalties 0.00
Other Interest Proceeds 0.00
-----------------------------------------------
Total 0.00
===============================================
Less Fee Paid To Servicer 0.00
Less Fee Strips Paid by Servicer 0.00
LESS FEES & EXPENSES PAID BY/TO SERVICER
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Interest Due Serv on Advances 0.00
Non Recoverable Advances 0.00
Misc. Fees & Expenses 0.00
-----------------------------------------------
Total Unscheduled Fees & Expenses 0.00
===============================================
Total Interest Due Trust 0.00
===============================================
LESS FEES & EXPENSES PAID BY/TO TRUST
Trustee Fee 0.00
Fee Strips 0.00
Misc. Fees 0.00
Interest Reserve Withholding 0.00
Plus Interest Reserve Deposit 0.00
-----------------------------------------------
Total 0.00
===============================================
PRINCIPAL SUMMARY
SCHEDULED PRINCIPAL:
Current Scheduled Principal 0.00
Advanced Scheduled Principal 0.00
-----------------------------------
Scheduled Principal 0.00
===================================
UNSCHEDULED PRINCIPAL:
Curtailments 0.00
Prepayments in Full 0.00
Liquidation Proceeds 0.00
Repurchase Proceeds 0.00
Other Principal Proceeds 0.00
-----------------------------------
Total Unscheduled Principal 0.00
===================================
Remittance Principal 0.00
===================================
Remittance P&I Due Trust 0.00
===================================
Remittance P&I Due Certs 0.00
===================================
POOL BALANCE SUMMARY
Balance Count
---------------------------------------
Beginning Pool 0.00 0
Scheduled Principal 0.00 0
Unscheduled Principal 0.00 0
Deferred Interest 0.00
Liquidations 0.00 0
Repurchases 0.00 0
---------------------------------------
Ending Pool 0.00 0
=======================================
Servicing Advance Summary
Amount
----------------------------
Prior Outstanding
Plus Current Period
Less Recovered
Less Non Recovered
Ending Outstanding
SERVICING FEE SUMMARY
Current Servicing Fees 0.00
Plus Fees Advanced for PPIS 0.00
Less Reduction for PPIS 0.00
Plus Delinquent Servicing Fees 0.00
-------------------------------------
Total Servicing Fees 0.00
=====================================
CAP LEASE ACCRETION
Accretion Amt 0.00
Distributable Interest 0.00
Distributable Principal 0.00
PPIS SUMMARY
Gross PPIS 0.00
Reduced by PPIE 0.00
Reduced by Shortfalls in Fees 0.00
Reduced by Other Amounts 0.00
---------------------------------------
PPIS Reducing Scheduled Interest 0.00
---------------------------------------
PPIS Reducing Servicing Fee 0.00
---------------------------------------
PPIS Due Certificate 0.00
=======================================
ADVANCE SUMMARY (ADVANCE MADE BY SERVICER)
Principal Interest
------------------------------------------
Prior Outstanding 0.00 0.00
Plus Current Period 0.00 0.00
Less Recovered 0.00 0.00
Less Non Recovered 0.00 0.00
Ending Outstanding 0.00 0.00
------------------------------------------
PAGE 3 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Current Remaining Credit
Accrual Pass- Accrued Total Total Distributable Interest Period Outstanding Support
----------- Opening Through Certificate Interest Interest Certificate Payment Shortfall Interest --------------------
Class Method Days Balance Rate Interest Additions Deductions Interest Amount Recovery Shorfalls Original Current (1)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
(1) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance of
all classes which are not subordinate to the class divided by (A).
PAGE 4 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION DETAIL
-------------------------------------------------------------------------------------------------------------------------------
Additions Deductions
--------------------------------------------------- ----------------------------
Prior Interest Other Deferred
Prior Current Interest Accrual Interest & Interest Distributable Interest
Interest Interest Shortfall on Prior Prepayment Yield Proceeds Allocable Accretion Loss Certificate Payment
Class Due Date Due Date Due Shortfall Premiums Maintenance (1) PPIS Interest Expense Interest Amount
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Other Interest Proceeds are additional interest amounts specifically
allocated to the bond(s) and used in determining the Bondholder's Distributable
Interest.
PAGE 5 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
INTEREST ADJUSTMENTS SUMMARY
--------------------------------------------------------------------------------
SHORTFALL ALLOCATED TO THE BONDS:
Net Prepayment Int. Shortfalls Allocated to the Bonds 0.00
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Legal Fees 0.00
Misc. Fees & Expenses Paid by/to Servicer 0.00
Interest Paid to Servicer on Outstanding Advances 0.00
ASER Interest Advance Reduction 0.00
Interest Not Advanced (Current Period) 0.00
Recoup of Prior Advances by Servicer 0.00
Servicing Fees Paid Servicer on Loans Not Advanced 0.00
Misc. Fees & Expenses Paid by Trust 0.00
Shortfall Due to Rate Modification 0.00
OTHER INTEREST LOSS 0.00
----
Total Shortfall Allocated to the Bonds 0.00
====
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXCESS ALLOCATED TO THE BONDS:
Other Interest Proceeds Due the Bonds 0.00
Prepayment Interest Excess Due the Bonds 0.00
Interest Income 0.00
Yield Maintenance Penalties Due the Bonds 0.00
Prepayment Penalties Due the Bonds 0.00
Recovered ASER Interest Due the Bonds 0.00
Recovered Interest Due the Bonds 0.00
ARD Excess Interest 0.00
----
Total Excess Allocated to the Bonds 0.00
====
--------------------------------------------------------------------------------
AGGREGATE INTEREST ADJUSTMENT ALLOCATED TO THE BONDS
Total Excess Allocated to the Bonds 0.00
Less Total Shortfall Allocated to the Bonds 0.00
----
Total Interest Adjustment to the Bonds 0.00
====
PAGE 6 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL LOAN STATUS SUMMARY
----------------------------------------------------------------------------------------------------------------------------------
Delinquency Aging Categories Special Event Categories (1)
--------------------------------------------------------------------------- ---------------------------------------
Specially
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO Modifications Serviced Bankruptcy
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
PAGE 7 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
----------------------------------------------------------------------------------------------------------------------------------
Appraisal Reduct. Liquidations Realized Losses Remaining Curr Weighted
Distribution Ending Pool (1) Payoffs (2) Penalties (2) (2) (2) Term Avg.
Date # Balance # Balance # Amount # Balance # Balance # Amount Life Coupon Remit
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
PAGE 8 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PRINCIPAL BALANCES
--------------------------------------------------------------------------
Weighted Average
Current Scheduled # of Scheduled % of ------------------------
Balance Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
--------------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------------
Average Schedule Balance 0
Maximum Schedule Balance
Minimum Schedule Balance
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
--------------------------------------------------------------------------
Weighted Average
Fully Amortizing # of Scheduled % of ------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
--------------------------------------------------------------------------
0 0 0.00%
DISTRIBUTION OF MORTGAGE INTEREST RATES
--------------------------------------------------------------------------
Weighted Average
Current Mortgage # of Scheduled % of ------------------------
Interest Rate Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
--------------------------------------------------------------------------
0 0 0.00%
Minimum Mortgage Interest Rate
Maximum Mortgage Interest Rate
DISTRIBUTION OF REMAINING TERM (BALLOON)
--------------------------------------------------------------------------
Weighted Average
Balloon # of Scheduled % of ------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
--------------------------------------------------------------------------
--------------------------------------------------------------------------
0 0 0.00%
PAGE 9 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF DSCR (PFY)
--------------------------------------------------------------------
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
DISTRIBUTION OF DSCR (CUTOFF)
--------------------------------------------------------------------
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
GEOGRAPHIC DISTRIBUTION
--------------------------------------------------------------------
Geographic # of Scheduled % of
Location Loans Balance Balance WAMM WAC PFY DSCR
--------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
--------------------------------------------------------------------
PAGE 10 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PROPERTY TYPES
-----------------------------------------------------------------------
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC PFY DSCR
-----------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------
DISTRIBUTION OF AMORTIZATION TYPE
-----------------------------------------------------------------------
# of Scheduled % of
Amortization Type Loans Balance Balance WAMM WAC PFY DSCR
-----------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------
DISTRIBUTION OF LOAN SEASONING
-----------------------------------------------------------------------
# of Scheduled % of
Number of Months Loans Balance Balance WAMM WAC PFY DSCR
-----------------------------------------------------------------------
--------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------
DISTRIBUTION OF YEAR LOANS MATURING
----------------------------------------------------------------------
# of Scheduled % of
Year Loans Balance Balance WAMM WAC PFY DSCR
----------------------------------------------------------------------
2006 0 0 0.00% 0 0.00% 0.00
2007 0 0 0.00% 0 0.00% 0.00
2008 0 0 0.00% 0 0.00% 0.00
2009 0 0 0.00% 0 0.00% 0.00
2010 0 0 0.00% 0 0.00% 0.00
2011 0 0 0.00% 0 0.00% 0.00
2012 0 0 0.00% 0 0.00% 0.00
2013 0 0 0.00% 0 0.00% 0.00
2014 0 0 0.00% 0 0.00% 0.00
2015 0 0 0.00% 0 0.00% 0.00
2016 0 0 0.00% 0 0.00% 0.00
2017 & Greater 0 0 0.00% 0 0.00% 0.00
-----------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------
PAGE 11 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
DELINQUENT LOAN DETAIL
-----------------------------------------------------------------------------------------------------------------------------
Paid Outstanding Out. Property Special
Disclosure Thru Current P&I P&I Protection Loan Status Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Code (1) Transfer Date Date Date Date
-----------------------------------------------------------------------------------------------------------------------------
TOTAL
-----------------------------------------------------------------------------------------------------------------------------
A. IN GRACE PERIOD 1. DELINQ. 1 MONTH 3. DELINQUENT 3 + MONTHS 5. NON PERFORMING MATURED BALLOON 9. REO
B. LATE PAYMENT BUT < 1 MONTH DELINQ. 2. DELINQ. 2 MONTHS 4. PERFORMING MATURED BALLOON 7. FORECLOSURE
-----------------------------------------------------------------------------------------------------------------------------
** Outstanding P&I Advances include the current period P&I Advances and may
include Servicer and Trust Advances.
PAGE 12 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
LOAN LEVEL DETAIL
------------------------------------------------------------------------------------------------------------------------------
Operating Ending Loan
Disclosure Property Maturity PFY Statement Geo. Principal Note Scheduled Prepayment Prepayment Status
Control # Group Type Date DSCR Date Location Balance Rate P&I Amount Date Code (1)
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
* NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on information obtained from the
related borrower, and no other party to the agreement shall be held liable for the accuracy or methodology used to determine
such figures.
------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. In Grace Period 1. Delinquent 1 month 3. Delinquent 3+ months 5. Non Performing Matured Ballon 9. REO
B. Late Payment but 2. Delinquent 2 months 4. Performing Matured Balloon 7. Foreclosure
< 1 month delinq
------------------------------------------------------------------------------------------------------------------------------
PAGE 13 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
REALIZED LOSS DETAIL
------------------------------------------------------------------------------------------------------------------------------
Beginning Gross Proceeds Aggregate Net Net Proceeds
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Period Control # Date Value Balance Proceeds Sched. Balance Expenses * Proceeds Sched. Balance Loss
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
CURRENT TOTAL
CUMULATIVE
------------------------------------------------------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc..
PAGE 14 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
BOND/COLLATERAL REALIZED LOSS RECONCILIATION
Interest
Prior (Shortages)/
Beginning Aggregate Realized Amounts Excesses Modification
Balance Realized Loss Covered by applied Adjustments/
of the Loss Applied Overcollateralization to Appraisal
Prospectus Loan at on to and other Realized Reduction
ID Period Liquidation Loans Certificates Credit Losses Adjustment
A B C D
------------------------------------------------------------------------------------------------------------------
CUMULATIVE
Additional (Recoveries)/
(Recoveries)/ Current Recoveries Realized
Expenses Realized of Loss
applied Loss Realized Applied
to Applied Losses to
Prospectus Realized to paid Certificate
ID Losses Certififcates* as Cash Interest
E
------------------------------------------------------------------------
CUMULATIVE
* In the Initial Period the Current Realized Loss Applied to Certificates will
equal Aggregate Realized Loss on Loans - B - C - D + E instead of A - C - D + E
Description of Fields
---------------------
A Prior Realized Loss Applied to Certificates
B Reduction to Realized Loss applied to bonds (could
represent OC, insurance policies, reserve accounts, etc)
C Amounts classified by the Master as interest adjustments
from general collections on a loan with a Realized Loss
D Adjustments that are based on principal haircut or future
interest foregone due to modification
E Realized Loss Adjustments, Supplemental Recoveries or
Expenses on a previously liquidated loan
PAGE 15 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
APPRAISAL REDUCTION DETAIL
Disclosure Appraisal Scheduled AR Current P&I Note Maturity Remaining Term Property Geographic Appraisal
Control# Red. Date Balance Amount Advance ASER Rate Date Life Type Location DSCR Value Date
-------------------- ---------------------------------------------------------------------------------------------------
-------------------- ---------------------------------------------------------------------------------------------------
PAGE 16 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MATERIAL BREACHES AND MATERIAL DOCUMENT DEFECT DETAIL
Ending Material
Disclosure Principal Breach Material Breach and Material Document Defect
Control # Balance Date Description
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Material breaches of pool asset representation or warranties or transaction
covenants.
PAGE 17 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
------------------ -------------------------------------------------- -------------------- -----------------------------
------------------ -------------------------------------------------- -------------------- -----------------------------
CURRENT
CUMULATIVE
PAGE 18 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL (END OF PERIOD)
---------------------------------------------------------------------------------------------------------------------------------
Loan Balance Remaining
Disclosure Servicing Status ---------------- Note Maturity --------- Property Geo. NOI
Control # Xfer Date Code(1) Schedule Actual Rate Date Life Type Location NOI DSCR Date
---------------------------------------------------------------------------------------------------------------------------------
Not Avail Not Avail Not Avail
---------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. P&I Adv - in Grace 1. P&I Adv - delinquent 3. P&I Adv - delinquent 5. Non Performing Mat. 9. REO
Period 1 month 3+ months Balloon
B. P&I Adv - < one 2. P&I Adv - delinquent 4. Mat. Balloon/Assumed 7. Foreclosure
month delinq 2 months P&I
PAGE 19 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS (END OF PERIOD)
----------------------------------
Disclosure Resolution
Control # Strategy Comments
----------------------------------
----------------------------------
PAGE 20 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
MATURITY EXTENSION SUMMARY
LOANS WHICH HAVE HAD THEIR MATURITY DATES EXTENDED
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
LOANS IN THE PROCESS OF HAVING THEIR MATURITY DATES EXTENDED
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
LOANS IN THE PROCESS OF HAVING THEIR MATURITY DATES FURTHER EXTENDED
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
LOANS PAID-OFF THAT DID EXPERIENCE MATURITY DATE EXTENSIONS
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
LOANS PAID-OFF THAT DID NOT EXPERIENCE MATURITY DATE EXTENSIONS
Number of Loans: 0
Cutoff Principal Balance: 0.00
PAGE 21 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
RATING INFORMATION
ORIGINAL RATINGS RATING CHANGE/CHANGE DATE(1)
--------------------- ----------------------------
CLASS CUSIP FITCH XXXXX'X S&P FITCH XXXXX'X S&P
----- ----- ----- ------- --- ----- ------- ---
NR - Designates that the class was not rated by the rating agency.
(1) Changed ratings provided on this report are based on information provided by
the applicable rating agency via electronic transmission. It shall be understood
that this transmission will generally have been provided to LaSalle within 30
days of the payment date listed on this statement. Because ratings may have
changed during the 30 day window or may not be being provided by the rating
agency in an electronic format and therefore not being updated on this report,
LaSalle recommends that investors obtain current rating information directly
from the rating agency.
PAGE 22 OF 23
[LaSalle Bank ABN AMRO LOGO] XXXXXX XXXXXXX CAPITAL I INC. Statement Date: 17-Jul-06
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 17-Jul-06
SERIES 2006-IQ11 Prior Payment: N/A
Next Payment: 15-Aug-06
Record Date: 30-Jun-06
ABN AMRO ACCT:
LEGEND
Until this statement/report is filed with the Commission with respect to the
Trust pursuant to Section 15(d) of the Securities Exchange Act of 1934, as
amended, the recipient hereof shall be deemed to keep the information contained
herein confidential and such information will not, without the prior consent of
the Master Servicer or the Trustee, be disclosed by such recipient or by its
officers, directors, partners, employees, agents or representatives in any
manner whatsoever, in whole or in part.
PAGE 23 OF 23
EXHIBIT N
[Reserved]
EXHIBIT O
[Reserved]
EXHIBIT P
[Reserved]
EXHIBIT Q
[Reserved]
EXHIBIT R
[Reserved]
EXHIBIT S-1A
FORM OF POWER OF ATTORNEY TO GENERAL MASTER SERVICER
RECORDING REQUESTED BY:
Xxxxx Fargo Bank, N.A.
AND WHEN RECORDED MAIL TO:
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Commercial Mortgage Servicing - Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-IQ11
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 2006-IQ11 (the "Trustee"), under that certain
Pooling and Servicing Agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint XXXXX FARGO
BANK, N.A., as general master servicer under the Pooling and Servicing Agreement
(the "General Master 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 Xxxxx Fargo Bank, N.A. to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by Xxxxx Fargo Bank, N.A. of its duties as General Master Servicer
under the Pooling and Servicing Agreement, giving and granting unto Xxxxx Fargo
Bank, N.A. 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, N.A. shall
lawfully do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the
General Master Servicer shall not, without the Trustee's written consent: (i)
initiate any action, suit or proceeding directly relating to the servicing of a
Mortgage Loan solely under the Trustee's name without indicating the General
Master Servicer's representative capacity, (ii) initiate any other action, suit
or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller (each as defined in the
Pooling and Servicing Agreement) for breaches of representations and warranties)
solely under the Trustee's name, (iii) engage counsel to represent the Trustee
in any action, suit or proceeding not directly relating to the servicing of a
Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 8th day of June, 2006.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11
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-1B
FORM OF POWER OF ATTORNEY TO NCB MASTER SERVICER
RECORDING REQUESTED BY:
NCB, FSB
AND WHEN RECORDED MAIL TO:
NCB, FSB
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing
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 2006-IQ11 (the "Trustee"), under that certain
Pooling and Servicing Agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint NCB, FSB, as
NCB master servicer under the Pooling and Servicing Agreement (the "NCB Master
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 NCB, FSB to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by NCB, FSB
of its duties as NCB Master Servicer under the Pooling and Servicing Agreement,
giving and granting unto NCB, FSB 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 NCB, FSB shall lawfully
do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the NCB
Master Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the NCB Master
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 8th day of June, 2006.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11
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-2A
FORM OF POWER OF ATTORNEY TO GENERAL SPECIAL SERVICER
RECORDING REQUESTED BY:
LNR PARTNERS, INC.
AND WHEN RECORDED MAIL TO:
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11
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 2006-IQ11 (the "Trustee"), under that certain
Pooling and Servicing Agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint LNR
PARTNERS, INC., as general special servicer under the Pooling and Servicing
Agreement (the "General Special 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 LNR Partners, Inc. to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by LNR Partners, Inc. of its duties as General Special Servicer
under the Pooling and Servicing Agreement, giving and granting unto LNR
Partners, Inc. 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 LNR Partners, Inc. shall lawfully do
or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the
General Special Servicer shall not, without the Trustee's written consent: (i)
initiate any action, suit or proceeding directly relating to the servicing of a
Mortgage Loan solely under the Trustee's name without indicating the General
Special Servicer's representative capacity, (ii) initiate any other action, suit
or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller (each as defined in the
Pooling and Servicing Agreement) for breaches of representations and warranties)
solely under the Trustee's name, (iii) engage counsel to represent the Trustee
in any action, suit or proceeding not directly relating to the servicing of a
Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 8th day of June, 2006.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11
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-2B
FORM OF POWER OF ATTORNEY TO CO-OP SPECIAL SERVICER
RECORDING REQUESTED BY:
National Consumer Cooperative Bank
AND WHEN RECORDED MAIL TO:
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Special Servicing
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 2006-IQ11 (the "Trustee"), under that certain
Pooling and Servicing Agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint NATIONAL
CONSUMER COOPERATIVE BANK ("NCCB"), as co-op special servicer under the Pooling
and Servicing Agreement (the "Co-op Special 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 NCCB to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by NCCB of
its duties as Co-op Special Servicer under the Pooling and Servicing Agreement,
giving and granting unto NCCB 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 NCCB shall lawfully do or
cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the Co-op
Special Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the Co-op Special
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 8th day of June, 2006.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11
By:____________________________________
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _________________ before me, _________________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT T
FORM OF SUBORDINATION AGREEMENT FOR NCB, FSB SUBORDINATE DEBT
THIS Agreement made this _____ day of ___, 20__, between _______, a
____________ having an address at __________ (the "Subordinate Mortgagee"), and
___________, a ___________, having an office at ____________ (the "Superior
Mortgagee").
W I T N E S S E T H:
WHEREAS, Superior Mortgagee is the owner of a certain $__________
mortgage and note secured thereby, dated ________ __, ____, made by
__________________________________ (the "Borrower") to Subordinate Mortgagee
(the "Superior Mortgage") covering the premises located at
____________________________________________ more particularly described in the
Superior Mortgage and Schedule "A" attached hereto (the "Premises"); and
WHEREAS, Subordinate Mortgagee is the holder of a certain
$____________ mortgage and the note secured thereby, dated ________ __, ____,
made by the Borrower to Subordinate Mortgagee (the "Subordinate Mortgage")
covering the Premises; and
WHEREAS, the Superior Mortgagee has purchased the Superior Mortgage
from Subordinate Mortgagee and as a condition thereto has required that the
Subordinate Mortgage be fully subordinated to the Superior Mortgage.
NOW, THEREFORE, the parties hereto agree as follows:
The Subordinate Mortgagee hereby covenants and agrees that (i)
the Subordinate Mortgage and all of its terms and provisions and the loan it
secures are and shall remain in all respects subject and subordinate to the
Superior Mortgage, its lien and all of its terms and provisions and to the
loan it secures and to any modifications, consolidations, extension or
renewals thereof and to any increases therein resulting from advances to
protect or preserve the lien of the Superior Mortgage on the Premises
encumbered thereby but not any other increases therein; (ii) no tenant under
any lease of any portion of the Premises, other than tenant shareholders
under proprietary leases, will be made a party defendant in any foreclosure
of the Subordinate Mortgage, nor will any other action be taken in connection
with such foreclosure which would have the effect of terminating any such
lease; (iii) no portion of the accounts, accounts receivable, rents, issues
and profits of the Premises shall be collected in connection with the
foreclosure of the Subordinate Mortgage or any other enforcement action
except through a receiver appointed by the court in which such foreclosure
action is brought, after due notice of the application of the appointment of
such receiver shall have been given to the Superior Mortgagee; (iv) the
accounts, accounts receivable, rents, issues and profits collected by any
such receiver (or which shall under any circumstances come into possession of
the holder of the Subordinate Mortgage at a time when Subordinate Mortgagee
has received written notice of a default under the Superior Mortgage) shall
be applied, at Superior Mortgagee's direction, to the payment of taxes,
maintenance and operating charges and disbursements incurred in connection
with the operation and maintenance of the Premises and to the payment of
principal, interest and other amounts due under the Superior Mortgage at the
time of such application, in such order and priority as Superior Mortgagee
shall direct, before any portion of such accounts, accounts receivable,
rents, issues and profits shall be applied to the Subordinate Mortgage; (v)
during the pendency of any such foreclosure action, if an action shall be
brought for the foreclosure of the Superior Mortgage and an application shall
be made for an extension of such receivership for the benefit of the Superior
Mortgagee, the Subordinate Mortgagee shall consent to the extension of such
receivership and all accounts, accounts receivable, rents, issues and profits
held by such receiver as of the date of such application shall be applied by
the receiver solely for the benefit of the Superior Mortgagee, and the
Subordinate Mortgagee in their respective order of priority; (vi) due notice
of the commencement of any foreclosure of the Subordinate Mortgage shall be
given to the Superior Mortgagee and true copies of all papers served or
entered in such action will be delivered to the Superior Mortgagee upon such
service or entry; (vii) no payments shall be made to the holder of the
Subordinate Mortgage during the period in which any default exists under the
Superior Mortgage in respect of any monthly payment or balloon payment due
thereunder beyond any applicable grace period, provided that the Subordinate
Mortgagee has received written notice of such default and all payments
otherwise payable to the Subordinate Mortgagee during such period shall be
paid to the Superior Mortgagee and, if any such payments are received by the
Subordinate Mortgagee at any time after which the Subordinate Mortgagee has
received written notice of the existence of such default, they shall be held
in trust for the Superior Mortgagee and turned over to the Superior Mortgagee
on demand; (viii) any distributions made or to be made to the Subordinate
Mortgagee pursuant to any bankruptcy or insolvency proceeding of the borrower
representing amounts due under the Superior Mortgage shall be paid by the
borrower, or, if such payments are nonetheless received by the Subordinate
Mortgagee, by the Subordinate Mortgagee immediately upon their receipt, to
the Superior Mortgagee for application, at Superior Mortgagee's direction, to
the payment of principal, interest and other amounts due under the Superior
Mortgage at the time of such application, in such order and priority as
Superior Mortgagee shall direct, before any portion of such accounts,
accounts receivable, rents, issues and profits shall be applied to the
Subordinate Mortgage; and (ix) all condemnation, casualty or similar payments
with respect to the premises shall be applied, for so long as the Superior
Mortgage remains outstanding, in accordance with the Superior Mortgage.
This Agreement is governed by and is to be construed under the
laws of the state in which the Premises is located.
So long as the Superior Mortgage shall remain a lien upon the
Premises or any part thereof, Subordinate Mortgagee shall execute,
acknowledge and deliver, upon Superior Mortgagee's reasonable demand, at any
time or from time to time, any and all further subordinations, agreements or
other instruments in recordable form (and in form reasonably satisfactory to
Subordinate Mortgagee) as Superior Mortgagee may reasonably require for
carrying out the purpose and intent of the covenants contained herein;
provided, however, that no such subordinations, agreements or other
instruments shall increase Subordinate Mortgagee's obligations or decrease
Subordinate Mortgagee's rights under this Agreement or the Subordinate
Mortgage.
So long as the Superior Mortgage shall remain a lien upon the
Premises or any part thereof, Subordinate Mortgagee shall not enter into any
agreement to amend or modify the Subordinate Mortgage in a manner material to
Superior Mortgagee without notice to, and the prior consent of, Superior
Mortgagee.
In order to enable Superior Mortgagee to enforce any claims by
the Subordinate Mortgagee against the Borrower in any liquidation or
dissolution of Borrower, or any execution sale, receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization, or other similar
proceeding relative to the Borrower or its property, for so long as the
Superior Mortgage shall remain outstanding, Superior Mortgagee is hereby
irrevocably authorized and empowered in its discretion to make and present,
for and on behalf of the undersigned Subordinate Mortgagee, such proofs of
claims against the Borrower on account of the Subordinate Mortgage as
Superior Mortgagee may deem expedient or proper, and to vote such proofs of
claims in any such proceeding and to receive and collect any and all
dividends or other payments or disbursements made thereon in whatever form
the same may be paid or issued. Subordinate Mortgagee further agrees to
execute and deliver to Superior Mortgagee such assignments or other
instruments as may be reasonably required by Superior Mortgagee (and in form
reasonably satisfactory to Subordinate Mortgagee) in order to enable Superior
Mortgagee to enforce any and all such claims and to collect any and all such
payments or disbursements provided, however, that no such assignments or
other instruments shall increase Subordinate Mortgagee's obligations or
decrease Subordinate Mortgagee's rights under this Agreement or the
Subordinate Mortgage.
This Agreement shall not be amended or modified except by an
agreement in writing, signed by the party against whom enforcement is sought.
Except for notices in a foreclosure action, which shall be given
as provided by applicable rule of court, all notices hereunder shall be given
to each party in the same manner as provided in its mortgage or, if there are
no such notice provisions, at the address set forth above by personal
delivery or first class, certified mail, return receipt requested. Notices
shall be deemed to have been given when received. Either party may change its
address for notices hereunder by written notice to the other party.
This Agreement shall be binding upon the parties hereto and their
respective heirs, successors and assigns. Any assignee of the Subordinate
Mortgage shall be deemed by acceptance thereof to have assumed the
obligations of Subordinate Mortgagee hereunder. Subordinate Mortgagee hereby
agrees to have such assignee execute a formal assumption agreement upon such
assignment but no failure of an assignee to execute an assumption agreement
shall affect such assignee's assumption of the obligations of the Subordinate
Mortgagee.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Subordination Agreement the day and year first above written.
[Subordinate Mortgagee]
By:____________________________________
Name:
Title:
[Superior Mortgagee]
By:____________________________________
Name:
Title:
[PRIOR TO EXECUTION, THIS FORM SHOULD BE MODIFIED TO ADD APPROPRIATE
ACKNOWLEDGEMENTS AND INCORPORATE OTHER REVISIONS REQUIRED FOR RECORDING]
SCHEDULE A
EXHIBIT U
[Reserved]
EXHIBIT V
[Reserved]
EXHIBIT W
[Reserved]
EXHIBIT X
[Reserved]
EXHIBIT Y
INVESTOR CERTIFICATION
Date:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11
In accordance with the Pooling and Servicing Agreement, dated as of June
1, 2006 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, N.A., as General Master Servicer, NCB, FSB, as NCB
Master Servicer, LNR Partners, Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, and LaSalle Bank National
Association, as Trustee, 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 "Representative") 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
its Representative.
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
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having balance of (a) $20,000,000 or less, and (b)
less than or equal to 5% of Aggregate Certificate Balance,
whichever is less
To: [Address]
Attn:
From: _____________________________________, in its capacity
as Master Servicer (the "Servicer") under the Pooling and Servicing
Agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among the Servicer, LaSalle Bank National Association, as
Trustee, and others.
Date: _________, 20___
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-IQ11
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
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. NOTIFY YOU THAT THE MORTGAGOR HAS CONSUMMATED A DEFEASANCE OF
THE MORTGAGE LOAN PURSUANT TO THE TERMS OF THE MORTGAGE LOAN,
OF THE TYPE CHECKED BELOW:
____ a full defeasance of the payments scheduled to be due in
respect of the entire Principal Balance of the Mortgage
Loan; or
____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the Principal Balance of the
Mortgage Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire Principal Balance;
2. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE
EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A
HERETO, WHICH EXCEPTIONS THE 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 CERTIFICATE 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 $___________ [$20,000,000 OR
LESS OR LESS THAN FIVE PERCENT OF POOL BALANCE,
WHICHEVER IS LESS] WHICH IS LESS THAN 5% 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.
3. 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.
4. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL
AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE
DEFEASANCE OBLIGOR, AND OPINIONS OF COUNSEL AND INDEPENDENT
ACCOUNTANTS EXECUTED AND DELIVERED IN CONNECTION WITH THE
DEFEASANCE DESCRIBED ABOVE AND THAT ORIGINALS OR COPIES OF
SUCH AGREEMENTS, INSTRUMENTS AND OPINIONS HAVE BEEN
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.
5. CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND CERTIFICATIONS
DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE WITH THE SERVICING
STANDARD SET FORTH IN, AND THE OTHER APPLICABLE TERMS AND
CONDITIONS OF, THE POOLING AND SERVICING AGREEMENT.
6. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER HAS
CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID
CONSTITUTE A SERVICING OFFICER AS OF THE DATE OF THE
DEFEASANCE DESCRIBED ABOVE.
7. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO
YOU UPON REQUEST.
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
Additional Disclosure Notification
**SEND VIA FAX TO [XXX-XXX-XXXX] AND VIA EMAIL TO [ ] AND VIA OVERNIGHT
MAIL TO THE ADDRESS IMMEDIATELY BELOW**
LaSalle Bank National Association, as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services- Xxxxxx Xxxxxxx Capital I Inc.,
Series 2006-IQ11--SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing
Agreement, dated as of June 1, 2006, among among Xxxxxx Xxxxxxx Capital I Inc.,
as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as general master
servicer, LNR Partners, Inc., as general special servicer, NCB, FSB, as master
servicer with respect to the NCB, FSB Loans and NCCB Loan only, National
Consumer Cooperative Bank, as special servicer with respect to the Co-op
Mortgage Loans only, and LaSalle Bank National Association, as trustee, paying
agent and certificate registrar, the undersigned, as [ ], hereby notifies you
that certain events have come to our attention that [will] [may] need to be
disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[ ], phone number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By: __________________________
Name:
Title:
EXHIBIT BB-1
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2006-IQ11 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2006-IQ11, issued
pursuant to the Pooling and Servicing Agreement, dated as of June 1,
2006 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank,
N.A., as general master servicer (the "General Master Servicer"),
LNR Partners, Inc., as general special servicer (the "General
Special Servicer"), NCB, FSB, as master servicer with respect to the
NCB, FSB Loan and NCCB Loan only (the "NCB Master Servicer"),
National Consumer Cooperative Bank, as special servicer with respect
to the Co-op Mortgage Loans only (the "Co-op Special Servicer"), and
LaSalle Bank National Association, as trustee, paying agent and
certificate registrar (the "Trustee"). 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], the senior officer in charge of
securitization of the Depositor, certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___] (the "Annual Report") and all reports on Form 10-D required to
be 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. Based on my knowledge, the Reports, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual Report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period
covered by the Annual Report is included in the Reports;
4. Based on my knowledge and the servicer compliance statement(s)
required in the Annual Report under Item 1123 of Regulation AB, and
except as disclosed in the Reports, the Master Servicers, the
Special Servicers, the Primary Servicers and the Reporting
Sub-Servicers have fulfilled their obligations under the Pooling and
Servicing Agreement or the applicable sub-servicing agreement or
primary servicing agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessments of compliance with servicing criteria for
asset-backed securities required to be included in this report in
accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to the Annual
Report, except as otherwise disclosed in the Annual Report. Any
material instances of noncompliance described in such reports have
been disclosed in the Annual Report.
In giving the certifications above, I have reasonably relied information
provided to me by the following unaffiliated parties:
o Wells Fargo Bank, N.A., as General Master Servicer;
o LNR Partners, Inc., as General Special Servicer;
o NCB, FSB, as NCB Master Servicer;
o National Consumer Cooperative Bank, as Co-op Special Servicer;
o LaSalle Bank National Association, as Trustee;
o Union Central Mortgage Funding, Inc., as Primary Servicer;
o Babson Capital Management LLC, as Primary Servicer;
o SunTrust Bank, as Primary Servicer;
o Laureate Capital LLC, as Sub-Servicer
o NorthMarg Capital, Inc., as Sub-Servicer
o [names of additional Sub-Servicers].
Date: _________________________
_______________________________________
[Signature]
[Title]
EXHIBIT BB-2
FORM OF MASTER SERVICER PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2006-IQ11 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series
2006-IQ11, issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR
Partners, Inc., as general special servicer (the "General
Special Servicer"), NCB, FSB, as master servicer with respect
to the NCB, FSB Loan and NCCB Loan only (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special
servicer with respect to the Co-op Mortgage Loans only (the
"Co-op Special Servicer"), and LaSalle Bank National
Association, as trustee, paying agent and certificate
registrar (the "Trustee"). 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 on behalf of the [General
Master Servicer or the NCB Master Servicer, as applicable] to the Depositor and
its officers, directors and affiliates, with the knowledge and intent that they
will rely upon this certification in connection with the certification
concerning the Trust to be signed by an officer of the Depositor and submitted
to the Securities and Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of
2002, that:
1. I have reviewed the report of information provided by the
[General Master Servicer/NCB Master Servicer] for inclusion in
the Annual Report on Form 10-K ("Form 10-K") relating to the
Trust and all reports of information by the [General Master
Servicer/NCB Master Servicer] for inclusion in the
Asset-Backed Issuer Distribution Reports on Form 10-D ("Form
10-D") relating to the Trust (such reports by the [General
Master Servicer/NCB Master Servicer], collectively, the
"Master Servicer Periodic Reports");
2. Based on my knowledge, the Master Servicer Periodic Reports,
taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Master Servicer
Periodic Reports under the provisions of the Pooling and
Servicing Agreement for the calendar year preceding the date
of the Form 10-K is included in the Master Servicer Periodic
Reports;
4. I am responsible for reviewing the activities performed by the
[General Master Servicer/NCB Master Servicer] and based on my
knowledge and the compliance review conducted in preparing the
[General Master Servicer/NCB Master Servicer]'s compliance
statement under the Pooling and Servicing Agreement in
connection with Item 1123 of Regulation AB, and except as
disclosed in the Master Servicer Periodic Reports, the
[General Master Servicer/NCB Master Servicer] has fulfilled
its obligations under the Pooling and Servicing Agreement;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related
attestation reports on assessment of compliance with the
relevant Servicing Criteria for asset-backed securities
required under the Pooling and Servicing] Agreement to be
delivered by the [General Master Servicer/NCB Master Servicer]
included in the 10-K filing to which this certification
relates in connection with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been provided
thereby, and disclose any and all material instances of
noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the
[General Master Servicer/NCB Master Servicer] with respect to
the Trust's fiscal year [_____] all information relating to
the [General Master Servicer's/NCB Master Servicer's]
assessment of compliance with the Relevant Servicing Criteria
in order to enable them to conduct a review in compliance with
the standards for attestation engagements issued or adopted by
the PCAOB.
This Certification is being signed by me as an officer of the
[General Master Servicer/NCB Master Servicer] responsible for reviewing the
activities performed by the [General Master Servicer/NCB Master Servicer] under
the Pooling and Servicing Agreement.
Date: _________________________
[ENTITY NAME]
_______________________________________
[Signature]
[Title]
EXHIBIT BB-3
FORM OF SPECIAL SERVICER PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2006-IQ11 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series
2006-IQ11, issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR
Partners, Inc., as general special servicer (the "General
Special Servicer"), NCB, FSB, as master servicer with respect
to the NCB, FSB Loan and NCCB Loan only (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special
servicer with respect to the Co-op Mortgage Loans only (the
"Co-op Special Servicer"), and LaSalle Bank National
Association, as trustee, paying agent and certificate
registrar (the "Trustee"). 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 on behalf of the
[General Special Servicer or the Co-op Special Servicer, as applicable] to the
Depositor and its officers, directors and affiliates, with the knowledge and
intent that they will rely upon this certification in connection with the
certification concerning the Trust to be signed by an officer of the Depositor
and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the report of information provided by the
[General Special Servicer/Co-op Special Servicer] for
inclusion in the Annual Report on Form 10-K ("Form 10-K")
relating to the Trust and all reports of information by the
[General Special Servicer/Co-op Special Servicer] for
inclusion in the Asset-Backed Issuer Distribution Reports on
Form 10-D ("Form 10-D") relating to the Trust (such reports by
the [General Special Servicer/Co-op Special Servicer],
collectively, the "Special Servicer Periodic Reports");
2. Based on my knowledge, the Special Servicer Periodic Reports,
taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Special Servicer
Periodic Reports under the provisions of the Pooling and
Servicing Agreement for the calendar year preceding the date
of the Form 10-K is included in the Special Servicer Periodic
Reports;
4. I am responsible for reviewing the activities performed by the
[General Special Servicer/Co-op Special Servicer], and based
on my knowledge and the compliance review conducted in
preparing the [General Special Servicer/Co-op Special
Servicer]'s compliance statement under the [Pooling and
Servicing/Subservicing] Agreement in connection with Item 1123
of Regulation AB, and except as disclosed in the Special
Servicer Periodic Reports, the [General Special Servicer/Co-op
Special Servicer] has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related
attestation reports on assessment of compliance with the
relevant Servicing Criteria for asset-backed securities
required under the Pooling and Servicing Agreement to be
delivered by the [General Special Servicer/Co-op Special
Servicer] included in the 10-K filing to which this
certification relates in connection with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been provided thereby, and disclose any and all material
instances of noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the
[General Special Servicer/Co-op Special Servicer] with respect
to the Trust's fiscal year [_____] all information relating to
the [General Special Servicer's/Co-op Special Servicer's]
assessment of compliance with the Relevant Servicing Criteria
in order to enable them to conduct a review in compliance with
the standards for attestation engagements issued or adopted by
the PCAOB.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; names of master servicers; names of sub-servicers].
This Certification is being signed by me as an officer of the
[General Special Servicer/Co-op Special Servicer] responsible for reviewing the
activities performed by the [General Special Servicer/Co-op Special Servicer]
under the Pooling and Servicing Agreement.
Date: _________________________
[ENTITY NAME]
_____________________________________
[Signature]
[Title]
EXHIBIT BB-4
FORM OF TRUSTEE PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2006-IQ11 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series
2006-IQ11, issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR
Partners, Inc., as general special servicer (the "General
Special Servicer"), NCB, FSB, as master servicer with respect
to the NCB, FSB Loan and NCCB Loan only (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special
servicer with respect to the Co-op Mortgage Loans only (the
"Co-op Special Servicer"), and LaSalle Bank National
Association, as trustee, paying agent and certificate
registrar (the "Trustee"). 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 on behalf of the
[Trustee] to the Depositor and its officers, directors and affiliates, with the
knowledge and intent that they will rely upon this certification in connection
with the certification concerning the Trust to be signed by an officer of the
Depositor and submitted to the Securities and Exchange Commission pursuant to
the Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the information provided by the Trustee for
inclusion in the Annual Report on Form 10-K ("Form 10-K")
relating to the Trust and all information provided by the
Trustee for inclusion in Form 10-D ("Form 10-D") relating to
the Trust (such information provided by the Trustee,
collectively, the "Trustee Periodic Information");
2. Based on my knowledge, the Trustee Periodic Information, 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 with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution and other information
required to be included in the Trustee Periodic Information
under the provisions of the Pooling and Servicing Agreement
for the calendar year preceding the date of the Form 10-K is
included in the Trustee Periodic Information;
4. I am responsible for reviewing the activities performed by the
Trustee and based on my knowledge and the compliance reviews
conducted in preparing the Trustee's compliance statement
under the Pooling and Servicing Agreement in connection with
Item 1123 of Regulation AB, and except as disclosed in the
Trustee Periodic Information, the Trustee has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related
attestation reports on assessment of compliance with the
relevant Servicing Criteria for asset-backed securities
required under the Pooling and Servicing Agreement to be
delivered by the Trustee for inclusion in the 10-K filing to
which this certification relates in connection with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been included as an exhibit to Form 10-K, except as otherwise
disclosed in Form 10-K. Any material instances of
noncompliance described in such reports have been disclosed in
such reports on Form 10-K.
This Certification is being signed by me as an officer of the
Trustee responsible for reviewing the activities performed by the Trustee under
the Pooling and Servicing Agreement.
Date: _________________________
[ENTITY NAME]
_______________________________________
[Signature]
[Title]
EXHIBIT BB-5
FORM OF REPORTING SUB-SERVICER PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2006-IQ11 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series
2006-IQ11, issued pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR
Partners, Inc., as general special servicer (the "General
Special Servicer"), NCB, FSB, as master servicer with respect
to the NCB, FSB Loan and NCCB Loan only (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special
servicer with respect to the Co-op Mortgage Loans only (the
"Co-op Special Servicer"), and LaSalle Bank National
Association, as trustee, paying agent and certificate
registrar (the "Trustee"); and the Sub-Servicing Agreement,
dated as of [_____][__], [___] (the "Sub-Servicing Agreement")
between [identify parties]. Capitalized terms used herein but
not defined herein have the respective meanings given them in
the Sub-Servicing Agreement or, if not defined in the
Sub-Servicing Agreement, then the meanings set forth in the
Pooling and Servicing Agreement.
______________________________________________________________
I, [identify the certifying individual], certify on behalf of the
[SUB-SERVICER] to the Depositor and its officers, directors and affiliates, with
the knowledge and intent that they will rely upon this certification in
connection with the certification concerning the Trust to be signed by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the report of information provided by the
Sub-Servicer for inclusion in the Annual Report on Form 10-K
("Form 10-K") relating to the Trust and all reports of
information by the Sub-Servicer for inclusion in the
Asset-Backed Issuer Distribution Reports on Form 10-D ("Form
10-D") relating to the Trust (such reports by the Sub-Servicer
collectively, the "Sub-Servicer Periodic Reports");
2. Based on my knowledge, the Sub-Servicer Periodic Reports,
taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Sub-Servicer
Periodic Reports under the provisions of the Sub-Servicing
Agreement for the calendar year preceding the date of the Form
10-K is included in the Sub-Servicer Periodic Reports;
4. Based on my knowledge and the compliance review conducted in
preparing the Sub-Servicer's compliance statement under the
Sub-Servicing Agreement in connection with Item 1123 of
Regulation AB, and except as disclosed in the Sub-Servicer
Periodic Reports, the Sub-Servicer has fulfilled its
obligations under the Sub-Servicing Agreement;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related
attestation reports on assessment of compliance with the
relevant Servicing Criteria for asset-backed securities
required under the related Sub-Servicing Agreement to be
delivered by the Sub-Servicer included in the 10-K filing to
which this certification relates in connection with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been provided thereby, and disclose any and all material
instances of noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the
Sub-Servicer with respect to the Trust's fiscal year [_____]
all information relating to the Sub-Servicer's assessment of
compliance with the Relevant Servicing Criteria in order to
enable them to conduct a review in compliance with the
standards for attestation engagements issued or adopted by the
PCAOB.This Certification is being signed by me as an officer
of the Trustee responsible for reviewing the activities
performed by the Trustee under the Pooling and Servicing
Agreement.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; names of master servicers; names of other sub-servicers].
This Certification is being signed by me as an officer of the
Sub-Servicer responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Agreement.
Date: _________________________
[ENTITY NAME]
______________________________________
[Signature]
[Title]
SCHEDULE I
MSMC LOAN SCHEDULE
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1)
----------------- ------------- ----------------- -----------------------
1 1 0-000 XXXX
4 4 4-001 MSMC
5 5 5-001 MSMC
7 7 7-001 MSMC
8 8 8-001 MSMC
11 11 11-001 MSMC
15 14 14-001 MSMC
16 15 15-001 MSMC
17 16 16-001 MSMC
17
18 17-001 MSMC
19 17-002 MSMC
20 18 18-001 MSMC
23 21 21-001 MSMC
24 22 22-001 MSMC
25 23 23-001 MSMC
26 24 24-001 MSMC
28 26 26-001 MSMC
29 27 27-001 MSMC
32 30 30-001 MSMC
35 33 33-001 MSMC
36 34 34-001 MSMC
37 35 35-001 MSMC
40 38 38-001 MSMC
41 39 39-001 MSMC
42 40 40-001 MSMC
43 41 41-001 MSMC
45 43 43-001 MSMC
46 44 44-001 MSMC
47 45 45-001 MSMC
48 46 46-001 MSMC
49 47 47-001 MSMC
49
51 49-001 MSMC
52 00-000 XXXX
00 00-000 XXXX
54 49-004 MSMC
55 49-005 MSMC
56 49-006 MSMC
57 50 50-001 MSMC
65 57 57-001 MSMC
67 59 59-001 MSMC
68 60 60-001 MSMC
70 62 62-001 MSMC
74 66 66-001 MSMC
76 68 68-001 MSMC
80 72 72-001 MSMC
89 80 80-001 MSMC
91 82 82-001 MSMC
92 83 83-001 MSMC
95 86 86-001 MSMC
96 87 87-001 MSMC
97 88 88-001 MSMC
98 89 89-001 MSMC
100 91 91-001 MSMC
103 94 94-001 MSMC
107 98 98-001 MSMC
108 99 99-001 MSMC
112 103 103-001 MSMC
113 104 104-001 MSMC
121 112 112-001 MSMC
122 113 113-001 MSMC
125 116 116-001 MSMC
127 118 118-001 MSMC
128 119 119-001 MSMC
132 123 123-001 MSMC
140 131 131-001 MSMC
142 133 133-001 MSMC
157 148 148-001 MSMC
162 153 153-001 MSMC
163 154 154-001 MSMC
175 166 166-001 MSMC
188 179 179-001 MSMC
190 181 181-001 MSMC
193 184 184-001 MSMC
Mortgage Loan No. Property Name(2) Loan Group Original Balance
----------------- ----------------------------------------------------------- ---------- ----------------
1 Michigan Plaza 1 $160,000,000
4 Crossroads Tower Office Building 1 $58,000,000
0 Xxxxxxx Xxxxxx Mall 1 $57,000,000
7 Home Depot Jamaica NY 1 $26,000,000
8 Torrey Hills Center 1 $25,500,000
11 Mission Foothills Marketplace 1 $19,800,000
00 Xxxxxxx Xxxxxxxxx - Xxxxxxxxx (A) 1 $10,320,000
16 Graebel Portfolio - Office (A) 1 $5,680,000
17 The Shoppers Haven 1 $16,000,000
Xxxxxxxx Retail Portfolio
18 Xxxxxxxx Retail Portfolio - Value City (II) 1 $8,400,000
19 Xxxxxxxx Retail Portfolio - Pennsville Shopping Center (II) 1 $6,900,000
20 L-3/Bulova Building 1 $15,500,000
00 Xxxxxxxxxx Xxxxx and Waterford Plantation 2 $14,600,000
24 Manchester Big Y Plaza 1 $14,250,000
00 Xxxxxxx Xxxxxxx Xxxxxxxxxx - Xxxxx 0 2 $14,000,000
26 Park Tower Office Building 1 $13,700,000
00 Xxxxxxx Xxxxxx Shopping Center 1 $12,500,000
00 Xxxxx Xxxxx Xxxxxx Xxxxx 0 $12,500,000
00 Xxxxxx Xxxxxx Station 1 $12,000,000
35 Goshen Crossing Shopping Center 1 $11,450,000
36 000-000 Xxxx 00xx Xxxxxx 1 $11,000,000
37 0000 Xxxx Xxxxxxxx Xxx South 1 $11,000,000
40 Comfort Inn Washington DC 1 $10,300,000
41 000 X. Xxx Xxxxxxx Xxxxxxx 1 $10,200,000
00 Xxxxxxxxxxxx Xxxxxx 1 $9,700,000
43 Bedford Medical Office Building 1 $9,100,000
00 Xxxxxxxx Xxxxxxxxx Xxx & Xxxxxx Xxxxxxxxxx 1 $8,500,000
46 Wilshire Xxxxx Apartments 2 $8,500,000
47 Gateway Tech Center Portfolio - Canopy (B) 1 $4,800,000
00 Xxxxxxx Xxxx Xxxxxx Xxxxxxxxx - Xxxxxx (B) 1 $3,500,000
00 Xxxxxx Xxxxxx Xxxxx 1 $8,250,000
Citizens Bank Branch Portfolio
51 Citizen Bank Portfolio - Woburn (III) 1 $2,563,864
52 Citizen Bank Portfolio - Cranston (III) 1 $1,189,039
53 Citizen Bank Portfolio - Arlington (III) 1 $1,177,891
54 Citizen Bank Portfolio - Providence (III) 1 $1,166,744
55 Citizen Bank Portfolio - Quincy (III) 1 $1,003,251
56 Citizen Bank Portfolio - Westerly (III) 1 $899,210
00 Xxxxxxxx Xxxxx 1 $7,800,000
65 Royal Airport Office 1 $7,000,000
67 South University Galleria 1 $6,800,000
68 Memorial Building 1 $6,800,000
70 Xxxxx Plaza 1 $6,700,000
74 Apple Computer Store 1 $6,300,000
76 Holiday Inn Express - Chambersburg 1 $6,300,000
80 Hampton Inn - Universal Studios 1 $6,000,000
89 Holiday Inn Express - Clermont 1 $5,500,000
91 Seymour Multifamily Portfolio - Fallview Apartment (C) 2 $3,075,000
92 Seymour Multifamily Portfolio - Reservoir Manor (C) 2 $2,225,000
00 Xxxxxxxxx Xxxxxxxx Xxxx 1 $5,100,000
96 0000 Xxxxxxxxxxx Xxxx 1 $5,100,000
97 Brasswood II Apartments 2 $5,100,000
98 Fairfield Inn - Fairmont 1 $5,062,500
100 000-00 Xxxxxxxx Xxxx. 1 $5,000,000
000 Xxxxxxx Xxx & Xxxxxx Xxxxxxx 0 $4,800,000
107 000 Xxxxxxxx Xxxx 1 $4,400,000
108 8505 & 0000 X. Xxxxxxx Xxxxxx 1 $4,400,000
112 Monaco Apartments 2 $4,200,000
113 La Quinta - Daytona Beach 1 $4,200,000
000 XX-XX Xxxxxxxxx 1 $3,900,000
122 Milan Apartments 2 $3,850,000
000 Xxxxxxxx Shopping Center 1 $3,725,000
000 Xxxxxxxx Xxxxxxx Office and Retail 1 $3,725,000
000 Xxxxxxxxx Xxx - Xxxxxxxx 1 $3,665,000
000 Xxxxxxxxx Xxxxxx 1 $3,600,000
000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx 1 $3,250,000
000 XX-XX Xxxxxxxxx 1 $3,194,000
000 Xxxx Xxxx Xxxxxxxx 0 $2,750,000
162 Xxxxxxxx Medical Building 1 $2,660,000
163 Rite Aid - Ortonville 1 $2,650,000
175 Comfort Inn - Bradford 1 $2,200,000
188 Xxxxxxx Crossing 1 $1,900,000
000 Xxxx Xxxxx 1 $1,850,000
000 Xxxxxxxxxxxx Xxxxxxx 1 $1,780,000
Totals and Weighted Averages: $773,511,500
Mortgage Loan No. Cut-Off Date Balance(3) Street Address City State Zip Code
----------------- ----------------------- ------------------------------------------------- -------------- ----- --------
1 $160,000,000 000 Xxxxx Xxxxxxxx Xxx and 000 Xxxxx Xxxxxxxx Xxx Xxxxxxx XX 00000
4 $58,000,000 00-00 Xxx Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000
5 $57,000,000 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX 00000
7 $26,000,000 Xxxxxx Xxxxxx xxx 000xx Xxxxxx Xxxxxxx XX 00000
8 $25,500,000 0000-0000 Xxxxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000
11 $19,800,000 28715-28841 Xxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxx XX 00000
15 $10,320,000 00000 Xxxx Xxxxxxx Xxxxxx Xxxxxx XX 00000
16 $5,680,000 00000 Xxxx Xxxxxxx Xxxxxx Xxxxxx XX 00000
17 $16,000,000 00-00 Xxxxxxx Xxxxxx Xxxxxx XX 00000
18 $8,400,000 0000 Xxx Xxxx Xxxxxxx XX 00000
19 $6,900,000 000-000 Xxxxx Xxxxxxxx Xxxxxxxxxx XX 00000
20 $15,275,536 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX 00000
23 $14,489,762 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
24 $14,250,000 000 Xxxxxxx Xxxxxxxx Xxxxxxxxxx XX 00000
25 $14,000,000 00 Xxxxxxx Xxx Xxx Xxxx XX 00000
26 $13,558,808 000 X. Xxxxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
28 $12,500,000 000 Xxxxxxxxx Xxxxxx Xxxx Xxxxx XX 00000
29 $12,500,000 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxx XX 00000
32 $11,975,449 0000 XX Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
35 $11,450,000 00000 Xxxxxx Xxxx Xxxxxxxxxxxx XX 00000
36 $11,000,000 000-000 X. 00xx Xxxxxx Xxx Xxxx XX 00000
37 $10,902,917 0000 Xxxx Xxxxxxxx Xxx Xxxxx Xxxxxxx XX 00000
40 $10,286,956 0000 00xx Xxxxxx XX Xxxxxxxxxx XX 00000
41 $10,200,000 000 X Xxx Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
42 $9,700,000 0000 Xxxxxxx Xxxxxxxxxx Xxx Xxxx XX 00000
43 $9,100,000 000 X. Xxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
45 $8,489,236 00000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
46 $8,458,509 0000 Xxxxx Xxxxxxxx Xxx Xxxxxxx XX 00000
47 $4,785,638 000 Xxxxx 000 Xxxx Xxxxxx XX 00000
48 $3,489,528 000 Xxxxx 000 Xxxx Xxxxxx XX 00000
49 $8,250,000 10135,10175,10195 Xxxxxx Xxxxxx Xxxxx Xxx Xxxxx XX 00000
51 $2,556,551 000 Xxxx Xxxxxx Xxxxxx XX 00000
52 $1,185,647 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000
53 $1,174,531 000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
54 $1,163,416 000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
55 $1,000,389 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000
56 $896,645 000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
57 $7,800,000 0000-0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxx XX 00000
65 $6,993,730 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000
67 $6,800,000 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000
68 $6,772,394 000 Xxxx Xxxxxx Xxxx Xxxx XX 00000
70 $6,700,000 00000 Xxxxxxxxx Xxxx Xxxx. Xxxxxxxx XX 00000
74 $6,300,000 00-00 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
76 $6,292,022 0000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
80 $5,984,075 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
89 $5,500,000 0000 X. Xxxxxxx 00 Xxxxxxxx XX 00000
91 $3,075,000 00-00 XxXxxxxx Xxxxxx Xxxxxxx XX 00000
92 $2,225,000 00-00 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
95 $5,100,000 11601 and 00000 Xxxxxxx Xxxxx Xxxxxx XX 00000
96 $5,100,000 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
97 $5,090,396 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
98 $5,058,960 00 Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000
100 $4,960,714 000 - 00 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
103 $4,787,181 000 Xxx Xxxxx Xxxxxxx XX 00000
107 $4,400,000 000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
108 $4,400,000 8505 & 0000 X. Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
112 $4,200,000 0000 Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000
113 $4,153,999 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
121 $3,852,903 0000 X. Xxxxx Xxxxxx Xxxxxxxxx XX 00000
122 $3,850,000 0000 Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000
125 $3,687,367 0000 Xxxxxx Xxxx Xxxxxxxx XX 00000
127 $3,671,457 00000 Xxxxxxxx Xxxxx Xxxx Xxxxxx XX 00000
128 $3,649,745 00000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
132 $3,563,411 000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
140 $3,216,837 0000-0000 Xxxxxxx Xxxxxxxxx Xxxxx XX 00000
142 $3,155,429 000 Xxxxxx 00 XX Xxxxxxxxx XX 00000
157 $2,734,392 000 Xxxxx Xxxx Xxxxxx Xxxxx XX 00000
162 $2,655,035 0000 XX Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
163 $2,644,763 00 Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
175 $2,197,490 00 Xxx Xxxxxx Xxxxxxxx XX 00000
188 $1,886,525 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
190 $1,850,000 00000 Xxxxxxxxx Xxxx Xxxx XX 00000
193 $1,770,865 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
Totals and Weighted Averages: $772,319,208
Mortgage Loan No. Property Type Property Sub-Type Note Date
----------------- ------------- ----------------- ----------
1 Office Urban 03/14/2006
4 Office Urban 03/01/2006
5 Retail Anchored 08/19/2005
7 Other Leased Fee 09/27/2005
8 Retail Anchored 06/24/2005
11 Retail Anchored 09/08/2005
15 Industrial Warehouse 05/05/2006
16 Office Suburban 05/05/2006
17 Retail Anchored 10/27/2005
18 Retail Free Standing 09/21/2005
19 Retail Anchored 09/21/2005
20 Office Urban 10/31/2005
23 Multifamily Garden 10/21/2005
24 Retail Anchored 02/07/2006
25 Multifamily Garden 10/06/2005
26 Office Suburban 08/10/2005
28 Retail Anchored 03/03/2006
29 Retail Unanchored 08/04/2005
32 Retail Anchored 03/10/2006
35 Retail Anchored 03/03/2006
36 Office Urban 11/07/2005
37 Industrial Warehouse 11/22/2005
40 Hospitality Limited Service 04/04/2006
41 Office Suburban 12/08/2005
42 Retail Unanchored 03/22/2006
43 Office Medical 12/08/2005
45 Hospitality Limited Service 04/04/2006
46 Multifamily Garden 12/30/2005
47 Office Suburban 02/09/2006
48 Office Suburban 02/09/2006
49 Retail Unanchored 12/22/2005
51 Retail Free Standing 03/01/2006
52 Retail Free Standing 03/01/2006
53 Retail Free Standing 03/01/2006
54 Retail Free Standing 03/01/2006
55 Retail Free Standing 03/01/2006
56 Retail Free Standing 03/01/2006
57 Retail Unanchored 05/05/2006
65 Office Urban 05/08/2006
67 Retail Unanchored 08/15/2005
68 Retail Unanchored 02/22/2006
70 Retail Unanchored 12/20/2005
74 Retail Free Standing 12/07/2005
76 Hospitality Limited Service 04/04/2006
80 Hospitality Limited Service 02/23/2006
89 Hospitality Limited Service 05/01/2006
91 Multifamily Mid-Rise 08/10/2005
92 Multifamily Garden 08/10/2005
95 Office Suburban 08/24/2005
96 Retail Unanchored 09/30/2005
97 Multifamily Garden 03/23/2006
98 Hospitality Limited Service 04/11/2006
100 Retail Anchored 10/31/2005
103 Hospitality Limited Service 03/31/2006
107 Office Suburban 07/28/2005
108 Retail Unanchored 05/26/2005
112 Multifamily Mid-Rise 08/24/2005
113 Hospitality Limited Service 10/11/2005
121 Retail Anchored 06/30/2005
122 Multifamily High-Rise 08/24/2005
125 Retail Anchored 08/22/2005
127 Mixed Use Office/Retail 10/27/2005
128 Hospitality Limited Service 03/22/2006
132 Retail Anchored 08/09/2005
140 Retail Unanchored 08/22/2005
142 Retail Anchored 06/30/2005
157 Mixed Use Office/Retail 11/08/2005
162 Mixed Use Office/Retail 03/15/2006
163 Retail Free Standing 03/27/2006
175 Hospitality Limited Service 04/07/2006
188 Retail Shadow Anchored 10/07/2005
190 Retail Unanchored 01/31/2006
193 Retail Unanchored 12/02/2005
SCHEDULE II
IXIS LOAN SCHEDULE
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2)
----------------- ------------- ----------------- ----------------------- ------------------------------------
2 2 0-000 XXXX Rivercenter Mall
3 3 3-001 IXIS LeNature's Headquarters
6 6 6-001 IXIS Capital Plaza
10 10 10-001 IXIS Waianae Mall
12 Panos/Xxxxx Hotel Portfolio (Uptown)
12 12-001 IXIS Hilton Garden Inn-Uptown (I)
13 12-002 IXIS Hampton Inn-Uptown (I)
21 19 19-001 IXIS Roscoe Boulevard
22 20 20-001 IXIS Orange Plaza
33 31 31-001 IXIS Reno Tahoe Tech Center
39 37 37-001 IXIS Greater Lewistown Plaza
50 48 48-001 IXIS First Bank of Miami Office Building
59 52 52-001 IXIS 0000 00xx Xx
55 Lander Marketplace & Power Inn Plaza
62 55-001 IXIS Lander Marketplace (IV)
63 55-002 IXIS Power Inn Plaza (IV)
69 61 61-001 IXIS Holiday Inn Express West Point
72 64 64-001 IXIS Xxxxxxx Inn Aberdeen
78 70 70-001 IXIS Hampton Inn Dumfries
82 74 74-001 IXIS Pines of Wilmington
83 75 75-001 XXXX Xxxx 000 Xxxxxxxx Xxxx
00 00 Xxxxxx & 75 Woodlawn
85 77-001 IXIS 00 Xxxxxx Xxxxxx (V)
86 77-002 IXIS 00 Xxxxxxxx Xxx (V)
88 79 79-001 IXIS Ramland Road Flex
90 81 81-001 IXIS Lake Xxxx Gateway Plaza
99 90 90-001 IXIS 000 Xxxxxxxx Xxxxxxxxxx
101 92 92-001 IXIS Pointe North
102 93 93-001 IXIS 150-158 Xxxxxxxx Apartments
104 95 95-001 IXIS Captain's Landing
120 111 111-001 IXIS Northbrooke Retail Center
124 115 115-001 IXIS Xxxxxxxxx Center
137 128 000-000 XXXX Xxxxx Xxxxx Xxxxxx Xxxxxxx
155 146 146-001 IXIS Greystone Place Apartments
171 162 162-001 IXIS Catoctin Circle
Mortgage Loan No. Loan Group Original Balance Cut-Off Date Balance(3) Street Address
----------------- ---------- ---------------- ----------------------- -----------------------------------------
2 1 $95,000,000 $95,000,000 000 Xxxx Xxxxxxxx Xxxxxx
3 1 $62,300,000 $62,300,000 000 Xxxxx 00xx Xxxxxx
6 1 $40,000,000 $40,000,000 10301 and 00000 Xxxxxxxx Xxxx Xxxxxxxxx
10 1 $22,200,000 $22,008,607 NEC Xxxxxxxxxx Highway and Xxxxxxx Xxxxxx
00 1 $9,471,782 $9,471,782 000 Xxxx 0xx Xxxxxx
13 1 $8,578,218 $8,578,218 000 Xxxx 0xx Xxxxxx
21 1 $14,750,000 $14,722,773 00000 Xxxxxx Xxxxxxxxx
22 1 $14,700,000 $14,700,000 000-000 Xxxxxx Xxxxxx
33 1 $11,765,000 $11,765,000 10315 Double R Boulevard
39 1 $10,500,000 $10,478,803 000 Xxxxx Xxxxx Xxxxxxxxx
50 1 $8,125,000 $8,090,340 000 Xxxxxx Xxxxxx
59 1 $7,550,000 $7,536,126 1945,1955 and 0000 00xx Xxxxxx
62 1 $3,712,000 $3,712,000 1607-1609, 0000-0000 Xxxxxx Xxxxxx
63 1 $3,690,000 $3,690,000 0000 Xxxxxx Xxxx
69 1 $6,750,000 $6,750,000 0000 Xxxxx 0 Xxxx
72 1 $6,500,000 $6,491,913 0000 Xxxxxx Xxxxx
78 1 $6,100,000 $6,092,538 00000 Xxx Xxxxx Xxxx
82 2 $5,750,000 $5,750,000 0000 Xxxxxxxx Xxxxxxxxx
83 1 $5,750,000 $5,750,000 0000 XX Xxxxxxxxx Xxxx Xxxx
85 1 $3,628,169 $3,625,447 00 Xxxxxx Xxxxxx
86 1 $1,971,831 $1,970,352 00 Xxxxxxxx Xxxxxx
88 1 $5,500,000 $5,500,000 00 Xxxxxxx Xxxx
00 0 $5,400,000 $5,400,000 000, 000 & 000 Xxxxx Xxxxxxx Xxxxxxx
00 0 $5,028,000 $5,028,000 000 Xxxx Xxxxxxxx Xxxxxx
101 1 $4,830,000 $4,830,000 0000 Xxxx Xxxxxxxx Xxxxxx
102 2 $4,821,000 $4,821,000 000-000 Xxxx Xxxxxxxx Xxxxxx
104 2 $4,675,000 $4,675,000 0000 00xx Xxxxxx
120 1 $3,900,000 $3,900,000 0000 Xxxxx Xxxxxx Xxxxx
124 1 $3,750,000 $3,750,000 0000 Xxxxx Xxxxxx
137 2 $3,375,000 $3,375,000 0000 Xxxxx Xxxxx Xx Xxxxxx
155 2 $2,750,000 $2,750,000 0000 00xx Xxxxxx
000 1 $2,400,000 $2,395,047 00-00 Xxxxxxxx Xxxxxx, XX
Totals and Weighted Averages: $395,221,000 $394,907,946
Mortgage Loan No. City State Zip Code Property Type Property Sub-Type
----------------- ---------------- ----- -------- ------------------------------ ------------------------------
2 Xxx Xxxxxxx XX 00000 Retail Anchored
3 Xxxxxxx XX 00000 Industrial Flex
6 Xxxxxxxxxxxx XX 00000 Xxxxxx Xxxxxxxx
00 Xxxxxxx XX 00000 Retail Anchored
12 Xxxxxxxxx XX 00000 Hospitality Full Service
13 Xxxxxxxxx XX 00000 Hospitality Limited Service
21 Xxx Xxxx XX 00000 Other Parking
22 Xxxxxxxx XX 00000 Retail Anchored
33 Xxxx XX 00000 Xxxxxx Xxxxxxxx
00 Xxxxxxxxx XX 00000 Retail Anchored
50 Xxxxx Xxxxxx XX 00000 Xxxxxx Xxxxxxxx
00 Xxxxxxx XX 00000 Retail Anchored
62 Xxxxxxx XX 00000 Retail Shadow Anchored
63 Xxxxxxxxxx XX 00000 Retail Shadow Anchored
69 Xxxx Xxxxxxxxxx XX 00000 Hospitality Limited Service
72 Belcamp MD 21017 Hospitality Limited Service
78 Xxxxxxxx XX 00000 Hospitality Limited Service
82 Xxxxxxxxxx XX 00000 Multifamily Garden
83 Xxxxxxxxx XX 00000 Industrial Warehouse
85 Xxxxxxxx Xxxxxxx XX 00000 Mixed Use Office/Retail
00 Xxxxxxxx Xxxxxxx XX 00000 Mixed Use Office/Retail
88 Xxxxxxxxxx XX 00000 Industrial Flex
90 Xxxxxxxxx XX 00000 Retail Shadow Anchored
99 Xxxxx XX 00000 Multifamily Low-Rise
000 Xxx Xxxxx XX 00000 Xxxxxx Xxxxxxxx
000 Xxxxx XX 00000 Multifamily Low-Rise
104 Xxxxxxxxx XX 00000 Multifamily Garden
000 Xxx Xxxxx XX 00000 Retail Shadow Anchored
000 Xxxxxxxxxxx XX 00000 Xxxxxx Xxxxxxxx
000 Xxx Xxxxxx XX 00000 Manufactured Housing Community Manufactured Housing Community
155 Xxxxxxxxxx XX 00000 Multifamily Garden
171 Xxxxxxxx XX 00000 Retail Shadow Anchored
Mortgage Loan No. Note Date
----------------- ----------
2 02/09/2006
3 01/06/2006
6 05/02/2006
10 09/19/2005
12 02/28/2006
13 02/28/2006
21 03/14/2006
22 01/05/2006
33 02/22/2006
39 03/28/2006
50 01/09/2006
59 03/30/2006
62 04/24/2006
63 04/24/2006
69 05/10/2006
72 04/13/2006
78 05/01/2006
82 04/28/2006
83 03/30/2006
85 04/12/2006
86 04/12/2006
88 05/04/2006
90 04/19/2006
99 04/20/2006
101 03/08/2006
102 04/20/2006
104 05/01/2006
120 03/13/2006
124 05/10/2006
137 05/08/2006
155 05/09/2006
171 03/17/2006
SCHEDULE III
MM LOAN SCHEDULE
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2)
----------------- ------------- ----------------- ----------------------- ------------------------------------
38 36 36-001 MassMutual Warder Mansion/Xxxxxx Tower
58 51 51-001 MassMutual Meadowood Park Apartments
66 58 58-001 MassMutual Newport Sound Apartments
71 63 63-001 MassMutual Sun Prairie V Apartments
75 67 67-001 MassMutual Wallkill Living Center
81 73 73-001 MassMutual Northview Park Apartments
84 76 76-001 MassMutual Pueblo Xx Xxx Apartments
87 78 78-001 MassMutual Sun Prairie III Apartments
94 85 85-001 MassMutual Spring Valley Apartments
105 96 96-001 MassMutual Pine Club Apartments
114 105 105-001 MassMutual Kyle's Run Apartments
115 106 106-001 MassMutual Ridgewood West Apartments
123 114 114-001 MassMutual Padre De Vida Apartments
131 122 122-001 MassMutual Apple Village Apartments
134 125 125-001 MassMutual Xxxxxx Xxxxxxx Xxxxxxxxxx
000 000 127-001 MassMutual West Club Apartments
143 134 134-001 MassMutual Xxxxxxxx Xxxxxxxxxx Xxxxx XX
000 000 140-001 MassMutual Tealwood Place Apartments
151 142 142-001 MassMutual Woodglen Apartments Phase I
152 143 143-001 MassMutual Salisbury Commons
164 155 155-001 MassMutual Cobblestone Village
170 161 161-001 MassMutual Cambridge Village Apartments
179 170 170-001 MassMutual Xxxxxxxx Manor
Mortgage Loan No. Loan Group Original Balance Cut-Off Date Balance(3) Street Address
----------------- ---------- ---------------- ----------------------- -----------------------------------------
38 2 $11,000,000 $10,592,280 0000 00Xx Xx Xxxxxx, 0000 00Xx Xx Xxxxxx
58 2 $8,750,000 $7,539,048 00000 Xxxxxxxxx Xx
66 2 $7,000,000 $6,893,536 10101 Newport Sound Place
71 2 $7,280,000 $6,622,526 0000 Xxxxx Xx
75 2 $6,400,000 $6,298,365 000 Xxxxxx Xxxx Extension
81 2 $6,785,000 $5,931,830 00000 Xxxxxxxxx Xxxx
84 2 $5,800,000 $5,709,477 0000 Xxxxx Xxxxxxxx Xxxxxx
87 2 $6,140,000 $5,585,514 0000 Xxxxx Xx
94 2 $5,400,000 $5,170,559 00000 Xxxxxx Xxxxx
105 2 $5,100,000 $4,624,545 0000 Xxxx Xx
114 2 $4,500,000 $4,080,573 000 0Xx Xxxxxx
115 2 $4,500,000 $4,063,326 0000 Xxxx Xx
123 2 $3,825,000 $3,768,468 0000 Xxxxx Xxxx Xxxx
131 2 $4,000,000 $3,572,503 000 Xx 00Xx Xx
134 2 $3,750,000 $3,475,393 0000 Xxxx Xxxxx Xxxxx
136 2 $3,750,000 $3,380,061 000 Xxxxxx Xx
143 2 $3,570,000 $3,120,989 0000 X Xxxxxxxx Xxxx Xx
149 2 $3,285,000 $2,933,857 0000 Xxxxxxxxxxxx Xx
151 2 $3,310,000 $2,891,239 0000 X Xxxxxxxx Xxxx Xx
152 2 $2,890,000 $2,856,856 000 Xxxxxxxxxx Xxxx
164 2 $2,810,000 $2,615,838 2209 North Main
170 2 $2,875,000 $2,435,104 0000 Xxxxxxxx Xx
179 2 $2,100,000 $2,062,520 000 Xxxxx Xxxx
Totals and Weighted Averages: $114,820,000 $106,224,406
Mortgage Loan No. City State Zip Code Property Type Property Sub-Type
----------------- ---------------- ----- -------- ------------------------------ ------------------------------
38 Xxxxxxxxxx XX 00000 Multifamily Mid-Rise
58 Xxxxx XX 00000 Multifamily Garden
66 Xxx Xxxxxx Xxxxx XX 00000 Multifamily Garden
00 X Xxx Xxxxxx XX 00000 Multifamily Garden
75 Xxxxxxxx XX 00000 Multifamily Senior Housing
81 Xxxxxxxx Xxxxxxx XX 00000 Multifamily Garden
84 Xxxxxxx XX 00000 Multifamily Garden
00 X Xxx Xxxxxx XX 00000 Multifamily Garden
94 Xxxxxxxxx Xxxx XX 00000 Multifamily Garden
105 Xxxxxxxx XX 00000 Multifamily Garden
114 Xxxx Xxxxx XX 00000 Multifamily Garden
115 Xxxxxxxxxx XX 00000 Multifamily Garden
123 Xxxxxxx XX 00000 Multifamily Garden
131 Xxxxxx XX 00000 Multifamily Garden
134 Xxxx XX 00000 Multifamily Garden
136 Xxxxx XX 00000 Multifamily Garden
143 Xxxxxx XX 00000 Multifamily Garden
000 Xxxxxxx Xxxxx XX 00000 Multifamily Garden
151 Xxxxxx XX 00000 Multifamily Garden
152 Xxxxxxxxx XX 00000 Multifamily Garden
164 Xxxxxxxx XX 00000 Multifamily Garden
170 Xxxxxx XX 00000 Multifamily Garden
179 Xxxxxxxxx XX 00000 Multifamily Garden
Mortgage Loan No. Note Date
----------------- ----------
38 05/21/2003
58 02/14/1996
66 01/13/2005
71 10/16/1998
75 08/29/2002
81 03/29/1996
84 10/07/2004
87 10/16/1998
94 01/10/2003
105 06/30/1997
114 08/27/1997
115 04/15/1997
123 10/13/2004
131 08/16/1996
134 08/20/1999
136 07/30/1998
143 03/29/1996
149 08/21/1996
151 03/29/1996
152 04/29/2005
164 12/21/1999
170 04/15/1997
179 07/02/2004
SCHEDULE IV
NCB, FSB LOAN SCHEDULE
and
NCCB LOAN SCHEDULE
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2)
----------------- ------------- ----------------- ----------------------- ----------------------------------------------
31 29 29-001 NCB, FSB 000 Xxxx 00xx Xxxxxx Owners Corp.
34 32 32-001 NCB, FSB 51st/52nd St. Tenants Corp.
44 42 42-001 NCB, FSB Xxxxxxx Terrace
61 54 54-001 NCB, FSB Windsor Apartments, Inc.
73 65 65-001 NCB, FSB Xxxxxxx Arms Apartment Corp.
77 69 69-001 NCB, FSB Xxxxxxx Xxxxxx Apt. Corp.
93 84 84-001 NCB, FSB 3530 Owners Corp.
106 97 97-001 NCB, FSB 000 Xxxxxxx Xxxxxx Corp.
110 101 101-001 NCB, FSB The Homestead Owners' Corp.
111 102 102-001 NCB, FSB 620-640 Pelham Owners Corp.
116 107 107-001 NCB, FSB 24535 Owners Corp.
126 117 117-001 NCB, FSB Roosevelt Terrace Cooperative, Inc.
133 124 124-001 NCB, FSB 315 Homes Corp.
135 126 126-001 NCB, FSB 333 Bronx River Tenants Corp.
138 129 129-001 NCB, FSB Xxxxxxxx Xxxxx
000 000 130-001 NCB, FSB 0000 Xxxxxx Xx. Owners Corp.
141 132 132-001 NCB, FSB Orienta Gardens Owners, Inc.
144 135 135-001 NCB, FSB 000 Xxxxx Xxxxxx Corporation
145 136 136-001 NCB, FSB 00xx Xxxxxx Xxxx Corporation
147 138 138-001 NCB, FSB The Xxxxxxxx School
150 141 141-001 NCB, FSB Xxxxxx Street Owners Corp.
156 147 147-001 NCB, FSB 00 Xxxxxx Xxxxxx Housing Corp.
158 149 149-001 NCB, FSB 000 Xxxx Xxxxxx Corporation
160 151 151-001 NCB, FSB 4601 Owners Corp.
165 156 156-001 NCB, FSB Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx
000 000 157-001 NCB, FSB Xxxxxx House Tenants Corporation
167 158 158-001 NCB, FSB Woodlawn Veterans Mutual Housing Company, Inc.
168 159 159-001 NCB, FSB Carnegie House Tenants Corporation
169 160 160-001 NCB, FSB 00 Xxxxxxxxxxx Xxxxxx Tenants Corp.
172 163 163-001 NCB, FSB 10 Holder Apartments Corp.
176 167 167-001 NCB, FSB Ace Hardware Disttribution Center
177 168 168-001 NCB, FSB Bronxville Towers Apartments, Inc.
178 169 169-001 NCB, FSB Locust Street Owners, Inc.
180 171 171-001 NCB, FSB East 84th Owners Corp.
181 172 172-001 NCB, FSB 000 Xxxx 00xx Owners Corp.
183 174 174-001 NCB, FSB 528 West Owners Corp.
187 178 178-001 NCB, FSB Center Armory Retail Center
189 180 180-001 NCB, FSB Forest Hills Housing Cooperative, Inc.
191 182 182-001 NCB, FSB Commerce Row Shopping Center
194 185 185-001 NCB, FSB Xxxxx Street Apartments, Inc.
195 186 186-001 NCB, FSB 00-00 Xxxxx Xxxxxx Owners Corp.
196 187 187-001 NCB, FSB Chapel Owners Corp.
199 190 190-001 NCB, FSB 111 Tenants Corp.
200 191 191-001 NCB, FSB Centreville Retail Project
201 192 192-001 NCB, FSB Xxxxx Xxxxxx Xxxx Xxxxxxxxxx
000 000 193-001 NCB, FSB Winthrop Apartments Corp.
204 195 195-001 NCB, FSB Fort Place Cooperative, Inc.
207 198 198-001 NCB, FSB Fairfax House Owners, Inc.
210 201 201-001 NCB, FSB 0000 Xxxxxxx Xxxxxx Corp.
211 202 202-001 NCB, FSB Willow House Owners Corp.
212 203 203-001 NCB, FSB 000 Xxxx Xxx Xxxxxx Owners Corp.
213 204 204-001 NCB, FSB 000 Xxxx 00xx Xxxxxxx Corp.
214 205 205-001 NCB, FSB Xxxxxxx Xxxxxxxx Owners Corp.
216 207 207-001 NCB, FSB Xxxxxxx Court Owners, Inc.
218 209 209-001 NCB, FSB 000 Xxxx 0xx Xxxxxx Housing Corp.
219 210 210-001 NCB, FSB 889 Realty, Inc.
220 211 211-001 NCB, FSB 000 Xxxx 00xx Xxxxxx Owners Corp.
221 212 212-001 NCB, FSB 31577 Owners Corp.
222 213 213-001 NCB, FSB 000 Xxxx 00xx Xxxxxx Owners Corp.
223 214 214-001 NCB, FSB Xxxxxxx Xxxxx Xxxxx
000 000 215-001 NCB, FSB 000 Xxxx 00xx Xxxxxx Corp.
225 216 216-001 NCB, FSB Goshen Apartments
226 217 217-001 NCB, FSB 50-15 Owners Ltd.
227 218 218-001 NCB, FSB Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
000 000 219-001 NCB, FSB 00-00 Xxxx 00xx Xxxxxx Tenants Corp.
229 220 220-001 NCB, FSB 00xx Xxxxxx Artists Corp.
230 221 221-001 NCB, FSB Dartmouth Cooperative Corp.
232 223 223-001 NCB, FSB 000 Xxxx 00xx Xxxxxx Corporation
233 224 224-001 NCB, FSB 00 Xxxxxx Xxxxxx Corporation
234 225 225-001 NCB, FSB 000 Xxxx 00xx Xxxxxx, Inc.
236 227 227-001 NCB, FSB Xxxx 00xx Xxxxxx Tenants Corp.
237 228 228-001 NCB, FSB Xxxx 00xx Xxxxxx Owners, Incorporated
238 229 229-001 NCB, FSB Bronxville Gardens Owners Corp.
239 230 230-001 NCB, FSB 00 Xxx Xxxxxx Owners Corp.
240 231 231-001 NCB, FSB 000 Xxxx 00xx Xx. Apts., Inc.
241 232 232-001 NCB, FSB 000 Xxxxxxx Xxx. Co-Op Ltd.
Mortgage Loan No. Loan Group Original Balance Cut-Off Date Balance(3) Street Address
----------------- ---------- ---------------- ----------------------- -----------------------------------------------------
31 2 $12,000,000 $12,000,000 000 Xxxx 00xx Xxxxxx
34 2 $11,500,000 $11,483,264 00-00/00 00xx Xxxxxx & 00-00/00 00xx Xxxxxx
00 0 $8,500,000 $8,493,743 00 Xxxxxxx Xxxxxx
61 2 $7,500,000 $7,478,260 4705 and 0000 Xxxxx Xxxxxx Xxxxxxx
73 2 $6,500,000 $6,490,810 54-40 & 00-00 Xxxxxx Xxxx Xxxxxxx
77 1 $6,250,000 $6,232,588 00 Xxxxxxx Xxxxxx
93 1 $5,250,000 $5,239,488 0000 Xxxxx Xxxxxx Xxxxxxx
106 2 $4,600,000 $4,589,456 000 Xxxxxxx Xxxxxx
110 2 $4,250,000 $4,250,000 00 Xxxx Xxxxxxxxx Xxxxxx
111 2 $4,250,000 $4,241,619 000-000 Xxxxxx Xxxx
116 1 $4,000,000 $3,988,032 000 Xxxx 00xx Xxxxxx
126 2 $3,690,000 $3,679,206 00-00, 00-00, 00-00 & 00-00 00xx Xxxxxx
000 0 $3,500,000 $3,487,728 000 Xxxxxxxxx Xxxxx
135 2 $3,400,000 $3,389,918 000 Xxxxx Xxxxx Xxxx
138 2 $3,360,000 $3,356,968 0000 Xxxxxxx Xxxx
139 2 $3,250,000 $3,249,014 0000 Xxxxxx Xxxxxx
141 1 $3,200,000 $3,190,597 0000 Xxx Xxxxxx Xxxx Xxxx & 000 Xxxx Xxxxxx Post Road
144 1 $3,000,000 $3,000,000 000 Xxxxx Xxxxxx
145 1 $3,000,000 $3,000,000 000 Xxxx 00xx Xxxxxx
147 1 $3,000,000 $2,994,388 00 Xxxx 00xx Xxxxxx
000 1 $2,900,000 $2,900,000 00 Xxxxxx Xxxxxx
156 1 $2,750,000 $2,741,547 00 Xxxxxx Xxxxxx
000 0 $2,730,000 $2,730,000 000 Xxxx Xxxxxx
160 1 $2,675,000 $2,672,364 0000 Xxxxx Xxxxxx Xxxxxxx
165 1 $2,550,000 $2,550,000 00 Xxxxx Xxxxxx
166 1 $2,500,000 $2,500,000 000 Xxxxxxx Xxxxxx Xxxx
000 2 $2,500,000 $2,496,038 0000 Xxxxxxx Xxxxxx
168 1 $2,500,000 $2,492,501 000 Xxxx 00xx Xxxxxx
169 2 $2,500,000 $2,486,599 00 Xxxxxxxxxxx Xxxxxx
172 1 $2,400,000 $2,394,825 00 Xxxxxx Xxxxx
000 0 $2,200,000 $2,190,507 0000 Xxxxxxxx Xxxx
177 1 $2,200,000 $2,185,847 0/0 Xxxxxxxxxxx Xxxxxx
000 2 $2,150,000 $2,145,723 000-000 Xxxxxx Xxxxxx
180 1 $2,050,000 $2,045,869 000-000 Xxxx 00xx Xxxxxx
181 1 $2,000,000 $1,996,056 000 Xxxx 00xx Xxxxxx
183 1 $2,000,000 $1,989,571 000 Xxxx 000xx Xxxxxx
187 1 $1,900,000 $1,893,065 000 Xxxx Xxxxxxxxx Xxxxxx
189 2 $1,895,000 $1,885,787 000-000 Xxxxxx Xxxxx Xxxxxx
191 1 $1,830,000 $1,826,569 00000 Xxxxxxxxxx Xxxxxxx
000 1 $1,750,000 $1,750,000 00-00 Xxxxx Xxxxxx
195 2 $1,750,000 $1,746,423 00-00 Xxxxx Xxxxxx
196 1 $1,750,000 $1,741,354 00 Xxxxxx Xxxxx
000 0 $1,650,000 $1,650,000 000 Xxxx 00xx Xxxxxx
200 1 $1,650,000 $1,650,000 0000-0000 Xxxxxxxxxxx Xxxx
201 2 $1,600,000 $1,598,625 000 Xxxx Xxxxx Xxxxxx
202 2 $1,500,000 $1,498,624 00-00 000xx Xxxxxx
204 2 $1,500,000 $1,493,308 00 Xxxx Xxxxx
207 1 $1,400,000 $1,398,270 000 00xx Xxxxxx
210 2 $1,250,000 $1,248,837 0000 Xxxxxxx Xxxxxx
211 2 $1,250,000 $1,248,790 00 Xxxxx Xxxxxx
212 1 $1,200,000 $1,200,000 000 Xxxx Xxx Xxxxxx
213 1 $1,200,000 $1,200,000 000 Xxxx 00xx Xxxxxx
214 1 $1,175,000 $1,172,647 000 Xxxxxxx Xxxxxx
216 2 $1,100,000 $1,097,518 00 Xxxxxxx Xxxxxx
218 2 $1,050,000 $1,046,998 000 Xxxx 0xx Xxxxxx
219 1 $1,000,000 $1,000,000 000 Xxxxxxxx
000 0 $1,000,000 $998,487 000 Xxxx 00xx Xxxxxx
221 1 $1,000,000 $997,989 000 Xxxx 00xx Xxxxxx
222 1 $1,000,000 $997,914 000 Xxxx 00xx Xxxxxx
223 1 $1,000,000 $997,414 00 Xxxxx Xxx Xxxxx Xxxxx
000 1 $1,000,000 $996,919 000 Xxxx 00xx Xxxxxx
225 2 $992,000 $991,147 000 Xxxxxx Xxxxxx
226 2 $875,000 $872,000 00-00 00xx Xxxxxx
227 1 $860,000 $860,000 0000 Xxxxx Xxx Xxxxxxxxx Xxxx
228 1 $850,000 $850,000 00-00 Xxxx 00xx Xxxxxx
229 1 $850,000 $844,789 000 Xxxx 00xx Xxxxxx
230 2 $825,000 $821,636 00-00 Xxxxx Xxxxxxx
232 1 $750,000 $746,679 000-000 Xxxx 00xx Xxxxxx
233 2 $700,000 $695,814 00 Xxxxxx Xxxxxx
234 1 $675,000 $673,646 000 Xxxx 00xx Xxxxxx
236 1 $650,000 $648,055 00-00 Xxxx 00xx Xxxxxx
237 1 $500,000 $498,685 000 Xxxx 00xx Xxxxxx
238 2 $450,000 $449,282 00 Xxxxx Xxxxxx
239 1 $300,000 $298,879 00 Xxx Xxxxxx
240 1 $275,000 $269,682 000 Xxxx 00xx Xxxxxx
241 2 $230,000 $229,501 000 Xxxxxxx Xxxxxx
Totals and Weighted Averages $186,787,000 $186,437,861
Mortgage Loan No. City State Zip Code Property Type Property Sub-Type Note Date
----------------- ----------------- ----- -------- ------------- ----------------- ---------
31 Xxx Xxxx XX 00000 Multifamily Cooperative 02/16/2006
00 Xxxxxxxx XX 00000 Multifamily Cooperative 02/22/2006
44 Xxxxxxxxx XX 00000 Multifamily Cooperative 03/27/2006
61 Xxxxxxxxx XX 00000 Multifamily Cooperative 02/28/2006
73 Xxxxxx Xxxx XX 00000 Multifamily Cooperative 02/17/2006
77 Xxxxxxxx XX 00000 Multifamily Cooperative 12/20/2005
93 Xxxxxxxxx XX 00000 Multifamily Cooperative 03/15/2006
000 Xxxxx Xxxxxx XX 00000 Multifamily Cooperative 01/19/2006
000 Xxxxxxxxx XX 00000 Multifamily Cooperative 12/13/2005
000 Xxx Xxxxxxxx XX 00000 Multifamily Cooperative 03/08/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/13/2006
000 Xxxxxxx Xxxxxxx XX 00000 Multifamily Cooperative 02/27/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 12/21/2005
000 Xxxxxxx XX 00000 Multifamily Cooperative 02/23/2006
000 Xxxx XX 00000 Multifamily Garden 04/13/2006
000 Xxx Xxxxxxx XX 00000 Multifamily Cooperative 04/05/2006
000 Xxxxxxxxxx XX 00000 Multifamily Cooperative 02/24/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/24/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/01/2006
000 Xxx Xxxx XX 00000 Other School 03/30/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/02/2006
000 Xxxxxxxx XX 00000 Multifamily Cooperative 02/03/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/13/2006
000 Xxxxxxxxx XX 00000 Multifamily Cooperative 03/30/2006
000 Xxxxxxx XX 00000 Retail Unanchored 02/03/2006
000 Xxxxxxx-Xx-Xxxxxx XX 00000 Multifamily Cooperative 02/13/2006
000 Xxxxx XX 00000 Multifamily Cooperative 02/15/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/15/2006
000 Xxxxx Xxxxxx XX 00000 Multifamily Cooperative 12/21/2005
000 Xxxxxx Xxxxx XX 00000 Multifamily Cooperative 01/20/2006
000 Xxxxxxx XX 00000 Industrial Warehouse 03/21/2006
000 Xxxxxxxxxx XX 00000 Multifamily Cooperative 02/28/2006
000 Xxxxx Xxxxxx XX 00000 Multifamily Cooperative 03/20/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/16/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/14/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 12/14/2005
000 Xxxxxxxx XX 00000 Retail Unanchored 02/01/2006
000 Xxxxxxx Xxxxx XX 00000 Multifamily Cooperative 12/29/2005
000 Xxxxxxx XX 00000 Retail Unanchored 03/23/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 04/04/2006
000 Xxxxxxx XX 00000 Multifamily Cooperative 01/06/2006
000 Xxxxx Xxxx XX 00000 Multifamily Cooperative 12/29/2005
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/01/2006
000 Xxxxxxxx Xxxx XX 00000 Retail Unanchored 02/15/2006
000 Xxxxxxxx XX 00000 Mixed Use Multifamily/Retail 04/13/2006
202 Xxxxxx Xxxxx XX 00000 Multifamily Cooperative 03/22/2006
000 Xxxxxx Xxxxxx XX 00000 Multifamily Cooperative 01/27/2006
000 Xxxxxxxx XX 00000 Multifamily Cooperative 02/08/2006
000 Xxxxxxxxx XX 00000 Multifamily Cooperative 03/29/2006
000 Xxxxxxxxx Xxxxxx XX 00000 Multifamily Cooperative 04/05/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/15/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/07/2006
000 Xxxxxx Xxxx XX 00000 Multifamily Cooperative 03/31/2006
000 Xxxxx Xxxxxx XX 00000 Multifamily Cooperative 01/30/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 12/13/2005
000 Xxx Xxxx XX 00000 Multifamily Cooperative 12/07/2005
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/16/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/02/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/06/2006
000 Xxxxxxx XX 00000 Retail Unanchored 02/28/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/02/2006
000 Xxxxxxxx XX 00000 Mixed Use Multifamily/Retail 04/13/2006
226 Xxxxxxxxx XX 00000 Multifamily Cooperative 11/18/2005
000 Xxxxxxxx XX 00000 Retail Unanchored 03/01/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 12/28/2005
000 Xxx Xxxx XX 00000 Multifamily Cooperative 11/15/2005
000 Xxxxxx Xxxxx XX 00000 Multifamily Cooperative 01/31/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 01/26/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/28/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 03/14/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/15/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 02/27/2006
000 Xxxxxxxxxx XX 00000 Multifamily Cooperative 03/22/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 01/06/2006
000 Xxx Xxxx XX 00000 Multifamily Cooperative 11/21/2005
000 Xxxxxxxx XX 00000 Multifamily Cooperative 02/07/2006
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2) Loan Group
----------------- ------------- ----------------- ----------------------- ----------------------------- ----------
9 9 0-000 XXXX Xxxxxxxxxx Towers Apts. Corp. 2
Mortgage Loan No. Original Balance Cut-Off Date Xxxxxxx(0) Xxxxxx Xxxxxxx Xxxx Xxxxx Zip Code
----------------- ---------------- ----------------------- ------------------------------ ----------- ----- --------
9 $23,500,000 $23,491,609 270 & 000 Xxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxx XX 00000
Totals and
Weighted Averages: $23,500,000 $23,491,609
Mortgage Loan No. Property Type Property Sub-Type Note Date
----------------- ------------- ----------------- ----------
9 Multifamily Cooperative 04/20/2006
SCHEDULE V
UCMFI LOAN SCHEDULE
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2) Loan Group
----------------- ------------- ----------------- ----------------------- ----------------------------------- ----------
117 108 108-001 UCMFI Xxxx Rabbit Self Storage - Birdneck 1
118 109 109-001 UCMFI Charlotte XX Xxxxx 1
119 110 110-001 UCMFI Cascade Professional Plaza 1
146 137 137-001 UCMFI South Xxxxxx Office 1
148 139 139-001 UCMFI Parrot Plaza 1
153 144 144-001 UCMFI Timp View Market 1
161 152 152-001 UCMFI Sycamore Plaza 1
173 164 164-001 UCMFI Chesapeake Pods 1
174 165 165-001 UCMFI Malibu Center 1
182 173 173-001 UCMFI Denville Industrial 1
184 175 175-001 UCMFI Xxxxxxx Xxxx Xxxxx 0
000 000 176-001 UCMFI 000 Xxxx Xxxxxx 1
192 183 183-001 UCMFI Royal Gardens Apartments 2
197 188 188-001 UCMFI Ashland Park Retail 1
198 189 189-001 UCMFI 8804 Washington Industrial 1
205 196 196-001 UCMFI Arlington Heights Retail 1
206 197 197-001 UCMFI Xxxxxx Centre 1
208 199 199-001 UCMFI Xxxxxxx Xxxxx Xxxxx 0
000 000 000-000 XXXXX Xxxxxxxxx West Office 1
215 206 206-001 UCMFI Downeast Home 1
217 208 208-001 UCMFI Xxxx Xxxxx Xxxxxx Xxxxx 0
000 000 222-001 UCMFI Xxxxxxxx Avenue Retail 1
235 226 226-001 UCMFI Two Bears Industrial Building 1
Mortgage Loan No. Original Balance Cut-Off Date Balance(3) Street Address City
----------------- ---------------- ----------------------- -------------------------------------------- -----------------
117 $4,000,000 $3,970,983 000 X. Xxxxxxxx Xxxx Xxxxxxxx Beach
118 $4,000,000 $3,965,274 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx
119 $4,000,000 $3,954,463 0000 Xxxx 000 Xxxxx Orem
146 $3,050,000 $2,996,813 000 X. Xxxxxx Xxxxxx Xxx Xxxxxxx
148 $3,000,000 $2,986,686 42 & 48 X.Xxxxxxxxxx Crossroads Savannah
153 $2,835,000 $2,826,798 424 & 000 Xxxxx 000 Xxxx Xxxxxxxx Xxxx
161 $2,675,000 $2,671,062 0000-0000 Xxxxxxx Xxxx XX Xxxxxxxxxxxx
000 $2,400,000 $2,383,355 4801 & 0000 Xxxx Xxx Xxxxxxxxxx
174 $2,350,000 $2,332,186 00000 Xxx Xxxx Xxxxxx Xxxxxx Xxxxxxxx
182 $2,000,000 $1,990,933 000 Xxxxxxxx Xxxxxx Xxxxxxxx
184 $2,000,000 $1,982,494 000 X.Xxxxxxxx Xxxxxx Xxxxxxxx
185 $2,000,000 $1,977,258 000 Xxxx Xxxxxx Xxxxx
000 $1,800,000 $1,789,192 0000 Xxxxx 000 Xxxx Xxxx Xxxx Xxxx
197 $1,730,000 $1,724,823 000 Xx. Xxxxxxx Xxxx Xxxxxxxx
198 $1,700,000 $1,669,479 0000 Xxxxxxxxxx Xxxxxx, XX Albuquerque
205 $1,450,000 $1,433,664 0000-0000 Xxxxx Xxxx Xxxx Xxxxxxxxx Xxxxxxx
206 $1,425,000 $1,405,917 00000 Xxxxxx Xxxx Xxxxxx Xxxx
208 $1,320,000 $1,312,182 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxx
000 $1,300,000 $1,296,134 000 Xxxxxxx Xxxxxx XX Xxxxx
215 $1,115,000 $1,105,217 375 & 395 Hope and 380 & 000 Xxxxxxx Xxxxxxx Xxxx Xxxx Xxxx
217 $1,090,000 $1,085,111 0000 Xxxxx Xxxxx Xxxxxx Orem
231 $800,000 $797,558 00000 0xx Xxxxxx Xxxxxx Xxxxxxxxx
235 $675,000 $656,010 00000 Xxxxxx Xxxxx Xxxxxxxx
Totals and
Weighted Averages: $48,715,000 $48,313,591
Mortgage Loan No. State Zip Code Property Type Property Sub-Type Note Date
----------------- ----- -------- ------------- ----------------- ----------
117 VA 23451 Self Storage Self Storage 12/22/2005
000 XX 00000 Retail Free Standing 01/09/2005
119 UT 84097 Office Medical 12/27/2005
000 XX 00000 Office Suburban 12/19/2005
000 XX 00000 Retail Unanchored 02/23/2006
000 XX 00000 Retail Unanchored 03/09/2006
000 XX 00000 Retail Unanchored 05/01/2006
000 XX 00000 Industrial Warehouse 03/08/2006
000 XX 00000 Office Suburban 12/12/2005
182 NJ 07866 Mixed Use Office/Warehouse 02/23/2006
184 ID 83642 Retail Unanchored 02/10/2006
185 CA 95926 Retail Unanchored 12/08/2005
192 UT 84115 Multifamily Garden 02/01/2006
197 SC 29201 Retail Unanchored 03/09/2006
198 NM 87113 Industrial Warehouse 12/05/2005
205 IL 60004 Retail Unanchored 12/06/2005
206 AR 72212 Office Suburban 12/08/2005
208 UT 84403 Retail Unanchored 01/30/2006
209 OR 97301 Office Suburban 03/24/2006
215 UT 84115 Mixed Use Office/Warehouse 01/26/2006
217 UT 84097 Retail Unanchored 02/16/2006
231 CA 91730 Retail Unanchored 03/27/2006
235 CO 80601 Industrial Light 09/30/2005
SCHEDULE VI
SUNTRUST LOAN SCHEDULE
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2)
----------------- ------------- ----------------- ----------------------- -----------------------------------
14 13 13-001 SunTrust Hidden Creek Apartments
27 25 25-001 SunTrust Holiday Inn - Chantilly
30 28 28-001 SunTrust Eagle Pinnacle
60 53 53-001 SunTrust Reyes Industrial - Richmond
64 56 56-001 SunTrust Waverly Woods
79 71 71-001 SunTrust Glen Burnie Village
109 100 100-001 SunTrust Indian Street Village
129 120 120-001 SunTrust Martin Business Center
130 121 121-001 SunTrust University Blvd
154 145 145-001 SunTrust Lockwood Self Storage
159 150 150-001 SunTrust Clock Tower Center
186 177 177-001 SunTrust Upper Class Apartments
203 194 194-001 SunTrust Shops at Columbus Park (Hamilton Weems)
Mortgage Loan No. Loan Group Original Balance Cut-Off Date Balance(3) Street Address
----------------- ---------- ---------------- ----------------------- --------------------------------------------
14 2 $18,000,000 $17,962,214 6719 Cliffdale Road
27 1 $13,300,000 $13,275,463 4335 Chantilly Shopping Center
30 1 $12,375,000 $12,352,411 1040 & 1050 Eagles Landing Parkway
60 1 $7,500,000 $7,500,000 8025 Quality Drive
64 1 $7,000,000 $6,993,841 2201 - 2205 Warwick Way
79 1 $6,000,000 $5,989,048 7528 - 92 Ritchie Highway
109 1 $4,300,000 $4,292,045 3259 SE Federal Highway
129 1 $3,600,000 $3,597,202 1440 Nova Road
130 1 $3,600,000 $3,589,753 831 University Boulevard
154 1 $2,800,000 $2,758,184 1700 East Broadway Street
159 1 $2,720,000 $2,718,021 772 Maddox Drive
186 2 $1,900,000 $1,895,237 1415 - 1425 College Heights Drive
203 1 $1,500,000 $1,496,593 2501 Whittlesey Boulevard
Totals and Weighted Averages: $84,595,000 $84,420,011
Mortgage Loan No. City State Zip Code Property Type Property Sub-Type Note Date
----------------- ----------------- ----- -------- ------------- ----------------- ----------
14 Fayetteville NC 28314 Multifamily Garden 03/14/2006
27 Chantilly VA 20151 Hospitality Full Service 04/26/2006
30 Stockbridge GA 30281 Office Suburban 03/22/2006
60 Prince George VA 23875 Industrial Warehouse 04/18/2006
64 Mariottsville MD 21104 Office Suburban 04/11/2006
79 Glen Burnie MD 21061 Retail Unanchored 03/16/2006
109 Stuart FL 34997 Retail Shadow Anchored 03/31/2006
129 Holly Hill FL 32117 Office Suburban 04/21/2006
130 Silver Spring MD 20903 Office Medical 03/17/2006
154 Oviedo FL 32765 Self Storage Self Storage 10/31/2005
159 Ellijay GA 30540 Retail Unanchored 04/11/2006
186 Johnson City TN 37604 Multifamily Student Housing 02/21/2006
203 Columbus GA 31909 Retail Unanchored 02/21/2006
SCHEDULE VII
LIST OF ESCROW ACCOUNTS NOT CURRENTLY ELIGIBLE ACCOUNTS
(Section 8.3(e))
Morgan Stanley Mortgage Capital Inc.
NONE
IXIS Real Estate Capital Inc.:
NONE
NSB, FSB:
NONE
Massachusetts Mutual Life Insurance Company:
NEWPORT SOUND PARTNERS LTD
WIXOM GRAND RIVER ASSOC. L.P.
DALLAS AREA AFFORDABLE PTNI LP
TEXAS A SOUTHWESTERN PTNR LP
STERLING PARK MOUND ROAD ASSOCIATES
TEXAS E SOUTHWESTERN PARTNERS
TEXAS D SOUTHWESTERN PARTNERS
TEXAS B SOUTHWESTERN PARTNERS
MACON HOUSING PARTNERS, L.P.
SunTrust Bank:
NONE
Union Central Mortgage Funding, Inc.:
NONE
National Consumer Cooperative Bank:
NONE
SCHEDULE VIII
CERTAIN ESCROW ACCOUNTS FOR WHICH A REPORT
UNDER SECTION 5.1(g) IS REQUIRED
Morgan Stanley Mortgage Capital Inc.:
Merritt Square
Wilshire Woods Apts.
Shane Plaza
Comfort Inn - Bradford
IXIS Real Estate Capital Inc.:
Waianae Mall
Greystone Place Apts
Grand Mall
NSB, FSB:
Woodlawn Veterans Mutual Housing Company, Inc.
Clinton Towers Apt. Corp.
300 West 23rd Street Owners Corp.
Massachusetts Mutual Life Insurance Company:
NONE
SunTrust Bank:
NONE
Union Central Mortgage Funding, Inc.:
NONE
National Consumer Cooperative Bank:
NONE
SCHEDULE IX
LIST OF MORTGAGORS THAT ARE THIRD-PARTY BENEFICIARIES UNDER SECTION 2.3(a)
Morgan Stanley Mortgage Capital Inc.:
Graebel Portfolio - Warehouse (Graebel Office, LLC)
Graebel Portfolio - Office (Graebel Warehouse, LLC)
Gateway Tech Center Portfolio - Canopy (Gateway Technology Center, L.L.C.)
Gateway Tech Center Portfolio - Galton (Gateway Technology Center, L.L.C.)
Seymour Multifamily Portfolio - Fallview Apartment
(Oakbridge/Reservoir Manor Apartments, LLC)
Seymour Multifamily Portfolio - Reservoir Manor
(Oakbridge/Fallview Associates, LLC)
IXIS Real Estate Capital Inc.:
NONE
NSB, FSB:
NONE
Massachusetts Mutual Life Insurance Company:
NONE
SunTrust Bank:
NONE
Union Central Mortgage Funding, Inc.:
NONE
National Consumer Cooperative Bank:
NONE
SCHEDULE X
[Reserved]
SCHEDULE XI
EARN-OUT RESERVES
Morgan Stanley Mortgage Capital Inc.:
NONE
IXIS Real Estate Capital Inc.:
NONE
NSB, FSB:
NONE
Massachusetts Mutual Life Insurance Company:
NONE
SunTrust Bank:
NONE
Union Central Mortgage Funding, Inc.:
Orem Medical $13,024.38
Havana Court $60,095.35
Arlington Heights Retail. $54,451.73
Hinson Centre $24,887.59
Fashion Pointe $20,422.93
Parrot Plaza $22,900.00
National Consumer Cooperative Bank:
NONE
SCHEDULE XII
LIST OF MORTGAGE LOANS FOR WHICH A SCHEDULED PAYMENT IS DUE
AFTER THE END OF A COLLECTION PERIOD
Morgan Stanley Mortgage Capital Inc.:
NONE
IXIS Real Estate Capital Inc.:
NONE
NSB, FSB:
NONE
Massachusetts Mutual Life Insurance Company:
NONE
SunTrust Bank:
NONE
Union Central Mortgage Funding, Inc.:
NONE
National Consumer Cooperative Bank:
NONE
SCHEDULE XIII
LIST OF MORTGAGE LOANS THAT PERMIT VOLUNTARY PRINCIPAL
PREPAYMENT WITHOUT PAYMENT OF A FULL MONTH'S INTEREST
Morgan Stanley Mortgage Capital Inc.
NONE
IXIS Real Estate Capital Inc.:
NONE
NSB, FSB:
NONE
Massachusetts Mutual Life Insurance Company:
NONE
SunTrust Bank:
NONE
Union Central Mortgage Funding, Inc.:
NONE
National Consumer Cooperative Bank:
NONE
SCHEDULE XIV
[Reserved]
SCHEDULE XV
[Reserved]
SCHEDULE XVI
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria":
Applicable
Relevant Servicing Criteria Party(ies)
-------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Trustee
triggers and events of default in accordance with the transaction agreements. Master Servicers
Special Servicers
Primary Servicers
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Trustee
policies and procedures are instituted to monitor the third party's Master Servicers
performance and compliance with such servicing activities. Special Servicers
Primary Servicers
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Trustee
participating in the servicing function throughout the reporting period in Master Servicers
the amount of coverage required by and otherwise in accordance with the terms Special Servicers
of the transaction agreements. Primary Servicers
Cash Collection and Administration
-------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Trustee
accounts and related bank clearing accounts no more than two business days Master Servicers
following receipt, or such other number of days specified in the transaction Special Servicers
agreements. Primary Servicers
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Trustee
investor are made only by authorized personnel. Master Servicers
Primary Servicers
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicers
distributions, and any interest or other fees charged for such advances, are Special Servicers
made, reviewed and approved as specified in the transaction agreements. Primary Servicers
Trustee
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Trustee
accounts established as a form of overcollateralization, are separately Master Servicers
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicers
transaction agreements. Primary Servicers
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Trustee
institution as set forth in the transaction agreements. For purposes of this Master Servicers
criterion, "federally insured depository institution" with respect to a Special Servicers
foreign financial institution means a foreign financial institution that Primary Servicers
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicers
Special Servicers
Trustee
Primary Servicers
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and related Trustee
bank clearing accounts. These reconciliations are (A) mathematically Master Servicers
accurate; (B) prepared within 30 calendar days after the bank statement Special Servicers
cutoff date, or such other number of days specified in the transaction Primary Servicers
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
Investor Remittances and Reporting
-------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports:
1122(d)(3)(i)(A) (A) Are prepared in accordance with timeframes and other terms set forth in Master Servicers
the transaction agreements; Primary Servicers
Special Servicers
Trustee
1122(d)(3)(i)(B) (B) Provide information calculated in accordance with the terms specified in Trustee
the transaction agreements;
1122(d)(3)(i)(C) (C) Are filed with the Commission as required by its rules and regulations; Party who files
and report
1122(d)(3)(i)(D) (D) Agree with investors' or the Trustee's records as to the total unpaid Trustee
principal balance and number of pool assets serviced by each of the Master
Servicers, Special Servicers and Primary Servicers.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Trustee
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Trustee
checks, or other form of payment, or custodial bank statements.
Pool Asset Administration
-------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicers
Special Servicers
Primary Servicers
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Trustee
and approved in accordance with any conditions or requirements in the Master Servicers
transaction agreements. Special Servicers
Primary Servicers
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with Master Servicers
the related mortgage loan documents are posted to the Servicer's obligor Primary Servicers
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicers
records with respect to an obligor's unpaid principal balance. Primary Servicers
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicers
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicers
authorized personnel in accordance with the transaction agreements and Primary Servicers
related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications Master Servicers
and deeds in lieu of foreclosure, foreclosures and repossessions, as Special Servicers
applicable) are initiated, conducted and concluded in accordance with the Primary Servicers
timeframes or other requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicers
mortgage loan is delinquent in accordance with the transaction agreements. Special Servicers
Such records are maintained on at least a monthly basis, or such other period Primary Servicers
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicers
variable rates are computed based on the related mortgage loan documents. Primary Servicers
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicers
(A) such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicers
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicers
made on or before the related penalty or expiration dates, as indicated on Primary Servicers
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Master Servicers
behalf of an obligor are paid from the servicer's funds and not charged to Primary Servicers
the obligor, unless the late payment was due to the obligor's error or
omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business Master Servicers
days to the obligor's records maintained by the servicer, or such other Primary Servicers
number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicers
recorded in accordance with the transaction agreements. Primary Servicers
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
SCHEDULE XVII
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.4 of this Agreement to disclose to the Depositor and the Paying
Agent any information described in the corresponding Form 10-D Item described in
the "Item on Form 10-D" column to the extent such party has knowledge (and in
the case of financial statements required to be provided in connection with Item
6 below, possession) of such information (other than information as to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement).
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------
Item 1: Distribution and Pool o Master Servicers
Performance Information: o Special Servicers (only with
o Only with respect to any respect to 1121(a)(12) as to
information required by 1121 Specially Serviced Loans)
which is NOT included on the o Primary Servicers
Distribution Date Statement o Trustee
o Depositor
--------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Each Master Servicer (as to itself)
o Item 1117 of Regulation AB (to o Each Special Servicer (as to itself)
the extent material to o Trustee (as to itself)
Certificateholders) o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself) o Trustee/Paying
Agent/Master
Servicers/Depositor/Special
Servicers as to the Trust (in the
case of the Master Servicers and
Special Servicers, to be reported
by the party controlling such
litigation pursuant to Section
9.40)
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided
by the Depositor)
o Originators under Item 1110 of
Regulation AB
o Any party under Item 1100(d)(1) of
Regulation AB
--------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of o Depositor
Proceeds
--------------------------------------------------------------------------------
Item 4: Defaults Upon Senior o Trustee
Securities
--------------------------------------------------------------------------------
Item 5: Submission of Matters to a o Trustee
Vote of Security Holders
--------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool o Depositor
Assets o Sponsors
o Sellers
o Master Servicers
o Each Primary Servicer (as to loans
serviced by it)
--------------------------------------------------------------------------------
Item 7: Significant Enhancement N/A
Provider Information
--------------------------------------------------------------------------------
Item 8: Other Information o Any party responsible for
(information required to be disclosed disclosure items on Form 8-K
on Form 8-K that was not properly
disclosed)
--------------------------------------------------------------------------------
Item 9: Exhibits o Depositor
o Master Servicers
o Trustee
o Primary Servicers
--------------------------------------------------------------------------------
SCHEDULE XVIII
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.5 of this Agreement to disclose to the Depositor and the Paying
Agent any information described in the corresponding Form 10-K Item described in
the "Item on Form 10-K" column to the extent such party has actual knowledge
(and in the case of financial statements required to be provided in connection
with 1112(b) below, possession) of such information (other than information as
to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement).
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
--------------------------------------------------------------------------------
Item 9B: Other Information o Any party responsible for disclosure
(information required to be disclosed items on Form 8-K
on Form 8-K that was not properly
disclosed)
--------------------------------------------------------------------------------
Item 15: Exhibits, Financial o Trustee
Statement Schedules o Depositor
--------------------------------------------------------------------------------
Additional Item: o Each Master Servicer (as to itself)
o Each Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation o Paying Agent (as to itself)
AB (to the extent material to o Trustee (as to itself)
Certificateholders) o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/Master
Servicers/Depositor/Special
Servicers as to the Trust (in the
case of the Master Servicers and
the Special Servicers to be
reported by the party controlling
such litigation pursuant to
Section 9.40)
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided by
the Depositor)
o Originators under Item 1110 of
Regulation AB
o Party under Item 1100(d)(1) of
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Each Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation (to the extent material to
AB Certificateholders and only as to
affiliations under 1119(a))
o Each Special Servicer (as to itself)
(to the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Each Primary Servicer (as to
itself)(to the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicers/Depositor/Special
Servicers as to the Trust
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided by
the Depositor)
o Originators under Item 1110 of
Regulation AB
o Party under Item 1100(d)(1) of
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o N/A
Disclosure per Item 1112(b) of
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and o Trustee
1115(b) of Regulation AB
--------------------------------------------------------------------------------
SCHEDULE XIX
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.7 of this Agreement to report to the Depositor and the Paying
Agent the occurrence of any event described in the corresponding Form 8-K Item
described in the "Item on Form 8-K" column to the extent such party has actual
knowledge of such information (other than information as to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement).
Item on Form 8-K Party Responsible
--------------------------------------------------------------------------------
Item 1.01- Entry into a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
--------------------------------------------------------------------------------
Item 1.02- Termination of a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
--------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
--------------------------------------------------------------------------------
Item 2.04- Triggering Events that o Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
--------------------------------------------------------------------------------
Item 3.03- Material Modification to o Trustee
Rights of Security Holders
--------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of o Depositor
Incorporation or Bylaws; Change of
Fiscal Year
--------------------------------------------------------------------------------
Item 6.01- ABS Informational and o Depositor
Computational Material
--------------------------------------------------------------------------------
Item 6.02- Change of Servicer or o Master Servicers (as to itself
Trustee or a servicer retained by it)
o Special Servicers (as to itself
or a servicer retained by it)
o Primary Servicers (as to itself
or a servicer retained by it)
o Trustee
o Depositor
--------------------------------------------------------------------------------
Item 6.03- Change in Credit o Depositor
Enhancement or External Support o Trustee
--------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required o Paying Agent
Distribution
--------------------------------------------------------------------------------
Item 6.05- Securities Act Updating o Depositor
Disclosure
--------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
--------------------------------------------------------------------------------
Item 8.01 o Depositor
--------------------------------------------------------------------------------
Item 9.01 o Depositor
--------------------------------------------------------------------------------
Schedule XX
SELLER SUB-SERVICERS
Seller Sub-servicers retained as of the Closing Date by the General Master
Servicer
Cut-Off Date Balance of
Loan No. Property Name Related Mortgage Loan Seller Sub-Servicer
-------- ------------- --------------------- -------------------
12 Panos/Xxxxx Hotel Portfolio (Uptown) $18,050,000.00 Laureate Capital
48 First Bank of Miami Office Building $8,090,339.51 Laureate Capital
62 Xxxxx Plaza $6,700,000.00 Capmark Finance
66 Apple Computer Store $6,300,000.00 Capmark Finance
82 Seymour Multifamily Portfolio $3,075,000.00 Xxxxxxxx Xxxxxxxx Xxxxxx
- Fallview Apartment
83 Seymour Multifamily Portfolio $2,225,000.00 Xxxxxxxx Xxxxxxxx Xxxxxx
- Reservoir Manor
89 Fairfield Inn - Fairmont $5,058,960.05 Capmark Finance
000 Xxxxxxxx Xxxxxx $2,395,047.40 NorthMarq Capital
Seller Sub-servicers retained as of the Closing Date by the NCB Master Servicer
None
Seller Sub-servicers retained as of the Closing Date by the General Special
Servicer
None
Seller Sub-servicers retained as of the Closing Date by the Co-op Special
Servicer
None